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Michael W. Stamp, State Bar No. 72785
Molly E. Erickson, State Bar No. 253198
LAW OFFICES OF MICHAEL W. STAMP
479 Pacific Street, Suite One
Monterey, California 93940
Telephone: (831) 373-1214
Facsimile: (831) 373-0242
Attorneys for Plaintiff
Jane Kingsley Miller
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
JANE KINGSLEY MILLER, Case No. M99513
Complaint filed June 17, 2009
Plaintiff,
v.
CITY OF CARMEL-BY-THE-SEA, and
13 DOES 1 through 100,
EX PARTE APPLICATION FOR ORDER
PERMITTING FILING OF PLEADINGS
UNDER SEAL; DECLARATION OF
MICHAELW. STAMP
14
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16
17
18
Defendants.
Dept.: 4 (Hon. Larry E. Hayes)
I
EX PARTE APPLICATION
Plaintiff Jane Kingsley Miller hereby applies ex parte for an order allowing the
filing under seal of further pleadings concerning the City's Motion to Disqualify.
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Specifically, Plaintiffs counsel requests an order allowing Plaintiff to file under seal
pleadings that address the personnel matters referenced in the documents provided by
the City to the Court for in camera review. The City relies on these documents in
arguing that a substantial relationship exists between Mr. Stamp's former
23
representation of the City and his current representation of Ms. Miller. The City
24
presents selected documents from two personnel matters arising over a period of 8 to
25
26
27
10 years ago, but provides no context or information about those personnel matters.
This application is made on the grounds that, in addressing whether there is a
substantial relationship among the matters, Plaintiff's counsel will show to the Court that
28
MILLER V. CITY OF CARMEL -6Y-THE-SEA
CASE NO. M99513
1
Ex PARTE APPLICATION
FOR ORDER PERMITTING FILING OF PLEADINGS UNDER SEAL
0320
0 0
1 the context of specific aspects of the former representations (as evidenced by the
2 documents) is not related to the specific aspects of the current representation. A
3 substantial relationship exists only when confidential information obtained in the former
4 representation is material to the current representation. (Faughn v. Perez (2006) 145
5 Cai.App.4th 592, 604-605.) For example, in Faughn, the former representations and
6 the current representation were in the same field of law and fact (medical malpractice
7 arising from birth-related injuries), but the Court of Appeal found that disqualification
8 was not warranted. None of the former suits in Faughn involved the same allegations
9 of negligence as in the later suit (id., at p. 600) and the attorney did not obtain
10 confidential information that could help him in the later suit (id., at pp. 608-609).
11 In this case, although Plaintiffs counsel represented the City on these personnel
12 matters, that fact alone does not mean that he obtained confidential information that he
13 can now use to the Plaintiffs advantage in the current case. To make a detailed
14 comparison of the specific facts of the former representations and the current case in
15 establishing a lack of similarity, it will be necessary for Plaintiffs counsel to file the
16 documents under seal to protect the privacy of the employees.
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Dated: November 4, 2009
MILLER V. CiTY OF CARMEL-8Y-THE-SEA
CASE No. M99513
LAW OFFICES OF MICHAEL W. STAMP
Molly E. Erickson
Attorneys for Plaintiff,
Jane Kingsley Miller
2
Ex PARTE APPLICATION
FOR ORDER PERMITTING FILING OF PLEADINGS UNDER SEAL
0321
0 0
1 DECLARATION
2 I, Michael W. Stamp, declare as follows:
3 I have personal knowledge of each of the facts stated below, and the opinions
4 stated in this Declaration are based upon my knowledge, experience, skill, education
5 and training. I could testify competently to each of the statements contained in this
6 Declaration.
7
8
1.
2.
I am the attorney for Plaintiff Jane Kingsley Miller.
On October 30, 2009, I appeared at a scheduled hearing in this matter in
9 Department 4 of the Superior Court. At that time, I was given a set of 106 pages of
10 documents that the City represented to be identical to the ones filed under seal on or
11 about October 28, 2009 in this Court.
12 3. In chambers and in open court on October 30, 2009, the Honorable Larry
13 E. Hayes, Judge of the Superior Court, stated in substance that an ex parte application
14 for an order permitting Plaintiff to file documents under seal could be submitted to the
15 Court for consideration if such an order became reasonably necessary in order to
16 protect privileged or confidential information.
17 4. Two of the 106 pages are duplicates of the pages, so there are 104 pages
18 of material. Of those, approximately 69 pages have some relation to two personnel
19 matters, one arising in 1998 and one in 2001. The names of the two employees are not
20 yet in the public record in this case. In order to discuss the context of those matters
21 without disclosing the names of those employees, Plaintiff seeks an order permitting the
22 filing under seal of Plaintiffs counsel's response to those pages. The primary reason
23 for the order is to protect the privacy rights of the affected employees. Several of the
24 documents state the identities of employees who were disciplined or subject to
25 discipline. Those pages are not protected by the attorney-client privilege (for example,
26 they include letters from a City workers compensation attorney to an employee's
27 workers compensation attorney), but should be treated as confidential because of the
28 goal of providing privacy for the employees themselves.
MILLERV. CITY OF CARMEL-BY-THE-SEA
CASE NO. M99513
3
Ex PARTE APPLICATION
FOR ORDER PERMITTING FlUNG OF PLEADINGS UNDER SEAL
0322
0 0
1 5. Plaintiff seeks an order allowing the filing under seal only of those
2 pleadings that would identify employees who were involved in the disciplinary matters of
3 the City. All other documents will be discussed by Plaintiff in pleadings filed with the
4 public file.
5 I declare under penalty of perjury that the foregoing is true and correct and that
6 this Declaration is executed under penalty of perjury under the laws of the State of
7 California this 4th day of November,
8
9
10
11
Michael W. Stamp
12 POINTS AND AUTHORITIES
13 The documents produced for in camera review do not in themselves establish
14 that there is a substantial relationship between Mr. Stamp's former representations of
15 the City and his current representation of Ms. Miller. The appropriate legal test requires
16 far more than mere similarity of subject matter or the mere exposure to the confidences
17 of the former client {See, e.g., Faughn v. Perez, supra, 145 Cai.App.4th 592, 608-609;
18 Roush v. Seagate {2007) 150 Cai.App.4th 210, 219.)
19 The rule for determining when a substantial relationship exists was clearly stated
20 in Faughn:
21
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[S]uccessive 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.
(Faughn v. Perez, supra, 145 Cai.App.4th 592, 604-605, underlining added for
emphasis.) For a "substantial relationship" to exist, there must be a "substantial risk
MILLER V. CITY OF CARMEL-BY-THE-SEA
CASE No. M99513
4
Ex PARTE APPLICATION
FOR ORDER PERMITTING FILING OF PLEADINGS UNDER SEAL
0323
0 0
1 that the present representation will involve the use of confidential information acquired
2 in the course of the prior representation." (/d., at p. 605.) Filing documents under seal
3 will allow Plaintiff to discuss the context of the former personnel matters in order to give
4 the Court the information it needs to determine whether those matters are material to
5 Plaintiffs case.
6 The personnel issues are referenced in the following pages of the City's 106
7 pages of records (not including invoices): pages 26-38 and 39-80. The privacy interests
8 of the parties in those matters would be best protected by allowing the discussion of
9 those matters to be filed under seal.
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Respectfully submitted,
Dated: November 4, 2009 lAW OFFICES OF MICHAEL W. STAMP
~ -
Michael W. Stamp
MILLER V. CiTY OF CARMEL -6Y-THE-SEA
CASE No. M99513
Molly E. Erickson
Attorneys for Plaintiff,
Jane Kingsley Miller
5
Ex PARTE APPLICATION
FOR ORDER PERMITIING FILING OF PLEADINGS UNDER SEAL
0324
0
1 Michael W. Stamp, State Bar No. 72785
Molly E Erickson, State Bar No. 253198
2 LAW OFFICES OF MICHAEL W. STAMP
479 Pacific Street, Suite One
3 Monterey, California 93940
Telephone: (831) 373-1214
4 Facsimile: (831) 373-0242
5 Attorneys for Plaintiff
6
Jane Kingsley Miller
0
7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
9 JANE KINGSLEY MILLER,
10 Plaintiff,
11 v.
12 CITY OF CARMEL-BY-THE-SEA, and
DOES 1 through 100,
13
14
15
Defendants.
Case No. M99513
Complaint filed June 17, 2009
[PROPOSED] ORDER GRANTING EX
PARTE APPLICATION FOR ORDER
PERMITI"ING FILING OF PLEADINGS
UNDER SEAL
Dept.: 4 (Hon. Larry E Hayes)
16 Having read and considered the application requesting an order permitting filing
17 of pleadings under seal, and good cause appearing therefor,
18 IT IS ORDERED THAT:
The application is granted. 19
20
1.
2. The Plaintiff may file pleadings under seal that address the confidential
21 personnel matters referenced in the documents submitted by the City for in camera
22 review.
23
24
25
26
27
28
Dated: November ___ , 2009
MILLER V. CITY OF CARMEL-BY-THE-SEA
CASE No. M99513
Judge of the Superior Court
1
[PROPOSED] ORDER GRANTING EX PARTE APPLICATION
FOR ORDER PERMITIING FILING OF PLEADINGS UNDER SF AI
0325
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0
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Michael W. Stamp, State Bar No. 72785
Molly E. Erickson, State Bar No. 253198
LAW OFFICES OF MICHAEL W. STAMP
479 Pacific Street, Suite One
Monterey, California 93940
Telephone: (831) 373-1214
Facsimile: (831) 373-0242
Attorneys for Plaintiff
Jane Kingsley Miller
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
JANE KINGSLEY MILLER, Case No. M99513
Complaint filed June 17, 2009
Plaintiff,
CERTIFICATE OF SERVICE
v.
CITY OF CARMEL-BY-THE-SEA, and
DOES 1 through 100,
Date: Ex Parte Application
Defendants.
Time: 8:45 a.m.
Dept.: 4 (Hon. Larry E. Hayes)
1
MILLER V. CITY OF CARMEL -BY-THE-SEA CERTIFICATE OF SERVICE
CASE No. M99513
0326
1
2
0 0
PROOF OF SERVICE
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 November 4, 2009, I served the documents described as follows:
6 EX PARTE APPLICATION FOR ORDER PERMITTING FILING OF PLEADINGS
7
8
UNDER SEAL; DECLARATION OF MICHAEL W. STAMP
[PROPOSED] ORDER GRANTING EX PARTE APPLICATION FOR ORDER
PERMITTING FILING OF PLEADINGS UNDER SEAL
9 on the parties in this action as follows:
10 (X)
11
by 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.
The facsimile machine I used complied with Rule 2.302 and no error was
reported by the machine.
12
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17
(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
18 Liebert Cassidy Whitmore
153 Townsend Street Suite 520
19 San Francisco, CA 94107
20 Facsimile number:
(415) 856-0306
21
22
23
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Executed on November 4, 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.
/
MILLERV. CITY OF CARMEL-BY-THE-SEA
CASE No. M99513
Olga Mikheelfa
2
CERTIFICATE OF SERVICE
0327
FromO 30242 Page: 118 Date: 1114120o0 'M
1 Michael W. Stamp, State Bar No. 72765
Molly E. Erickson, State Bar No. 253198
2 lAW OFFICES OF MICHAEL W. STAMP
479 Pacific Street, Suite One
3 Monterey, California 93940
Telephone: (831) 373-1214
4 Facsimile: (831) 373-0242
5 Attorneys for Plaintiff
6
7
a
15
16
17
18
19
Jane Kingsley Miller
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
Case No. M99513
Complaint filed June 17, 2009
EX PARTE APPLICATION FOR ORDER
PERMITTING FILING OF PLEADINGS
UNDER SEAL.i. DECLARATION OF
MICHAEL W,::;TAMP
Dept.: 4 (Hon. Larry E. Hayes)
EX PARTE APPLICATION
Plaintiff Jane Kingsley Miller hereby applies ex parte for an order allowing the
filing under seal of further pleadings concerning the City's Motion to Disqualify.
Specifically, Plaintiffs counsel requests an order allowing Plaintiff to file under seal
20
pleadings that address the personnel matterS referenced in the documents provided by
21
the City to the Court for in camera review. The City relies on these documents In
22
arguing that a substantial relationship exists between Mr. Stamp's former
23
representation of the City and his current representation of Ms. Miller. The City
24
presents selected documents from two personnel matters arising over a period of 6 to
25
10 years ago, but provides no context or information about those personnel matters.
26
27
This application is made on the grounds that, ir1 addressing whether there is a
substantial relationship among the matters, Plaintiff's counsel will show to the Court that
28
MILLER V. CrTY OF CARMEL -BY-THI:-sEA
CASe No. M99513
1
Ex PAATE Al'PUCJITION
FOR OFlOER f'ERIIII'TT1NG FlUNG OF PLeADINGS UNOER SEAL
0328
Fro,O 30242
Page: 2/8
'M
1 the context of specific aspects of the former representations (as evidenced by the
2 documents) is not related to the specific aspects of the current representation. A
3 substantial relationship exists only when confidential information obtained in the former
4 representation is material to the current representation. (Faughn v. Perez (2006) 145
5 Cal.App.4th 592, 604-605.) For example, in Faughn, the former representations and
6 the current representation were in the same field of law and fact (medical malpractice
7 arising from birth-related injuries), but the Court of Appeal found that disqualification
8 was not wanranted. None of the former suits in Faughn involved the same allegations
9 of negligence as in the later suH (id., at p. 600) and the attomey did not obtain
10 confidential information that could help him in the later suit (id., at pp. 608-609).
11 In this case, although Plaintiffs counsel representee! the City on these personnel
12 matters, that fact alone does not mean that he obtained confidential information that he
13 can now use to the Plaintilfs advantage in the current case. To make a detailed
14 comparison of the specific facts of the former representations and the current case in
15 establishing a lack of similarity, it will be necessary for Plaintiff's counsel to file the
16 documents under seal to protect the privacy of the employees.
17
18
19
20
21
22
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24
25
26
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Dated: November 4, 2009
MIUERV. CITYOFCAAMEl..sYTHe-$EA
CAse No. M99513
LAW OFFICES OF MICHAEL W. STAMP
Attorneys for Plaintrff,
Jane Kingsley Miller
2
Ex PARTE AP!'IJCA110N
FOR ORDER f'ERMI'ITING FlUNG OF PlEADINGS UNDm SEAL
0329
FromO l0242 Page: 3/ll f:We: \.1
1 DECLARATION
2 I, Michael W. Stamp, declare as follows:
3 I have personal knowledge of each of the facts stated below. and the opinions
4 stated in this Declaration are based upon my knowledge, experience. skill, education
5 and training. I could testify competently to each of the statements contained in this
6 Declaration.
7
8
1.
2.
I am the attorney for Plaintiff Jane Kingsley Miller.
On October 30, 2009, I appeared at a scheduled hearing in this matter in
9 Department 4 of the Superior Court. At that time, I was given a set of 106 pages of
10 documents tha1 the City represented to be Identical to the ones filed under seal on or
11 about October 28, 2009 in this Court.
12 3. In chambers and in open court on October 30, 2009, the Honorable Larry
13 E. Hayes, Judge of the Superior Court, stated in substance tha1 an ex parte application
14 for an order permitting Plaintiff to file documents under seal could be submitted to the
15 Court for consideration If such an order became reasonably necessary in order to
16 protect privileged or confidential information.
17 4. Two of the 106 pages are duplicates of the pages, so there are 104 pages
18 of material. Of those, approximately 69 pages have some relation to two personnel
19 matters. one arising in 1998 and one in 2001. The names of the two employees are not
20 yet in the public record in this case. In order to discuss the context of those matters
21 without disclosing the names of those employees, Plaintiff seeks an order permitting the
22 filing under seal of Plaintiffs counsel's response to those pages. The primary reason
23 for the order is to protect the privacy rights of the affected employees. Several of the
24 documents state the Identities of employees who were disciplined or subject to
25 discipline. Those pages are not protected by the attorney-client privilege (for example,
26 they include letters from a Crty workers attorney to an employee's
27 workers compensation attorney), but should be trea1ed as confidential because of the
28 goal of providing privacy for the employees themselves.
MILLI!RV. CITY OF CIIRMEL-l.lYTH!!-SEA
CASE No. M99513
3
Ex PARTE AI'PLICA"t!ON
FOR ORDER PERMmlNG FlUNG OF Pu!ADINGS UNDER SEAL
0330
FrorrQ730242 Page 418 Date: 11/4/20oQ 'M
1 5. Plaintiff seeks an order allowing the filing under seal only of those
2 pleadings that would identify employees who were invqlved in the disciplinary matters of
3 the City. All other documents will be discussed by Plaintiff in pleadings filed with the
4 public file.
5 I declare under penalty of p e ~ u r y that the foregoing Is true and correct and that
6 this Declaration is executed under penalty of perjury under the laws of the State of
7 California this 4th day of November, 9 in Monterey, California.
I
8
9
10
11
Michael W. Stamp
12 POINTS AND AUTHORITIES
13 The documents produced for in camera review do not in themselves establish
14 that there is a substantial relationship between Mr. Stamp's former representations of
15 the City and his current representation of Ms. Miller. The appropriate legal test requires
16 far more than mere similarity of subject matter or the mere exposure to the confidences
17 of the former client. (See. e.g., Faughn v. Perez, supra, 145 Cai.App:41h 592, 608-609;
18 Roush v. Seagate (2007) 150 Cai.App.4th 210. 219.)
19 The rule for determining when a substantial relationship exists was clearly stated
20 in Faughn:
21
22
23
24
25
26
27
28
[S}uccesslve 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 i!1iQ
material to the evaluation. prosecution. settlement or
accomplishment of the current representation given it!z
factual and looal issues.
(Faughn v. Perez, supra, 145 Cai.App.4th 592, 604-605, underlining added for
emphasis.) For a "substantial relationship" to exist. there must be a "substantial risk
MILLER V, CITY Of CARMiilL.-BY-THE .SEA
CASE No. M99513
4
Ex PARTE APPt.ICATlON
FOR 0ROER PI!RMITTING FlUNG OF PI.EAOIOOS UNDeR SEAL
0331
From: o30242
Page: 518 Date: 1114120090 'M
1 that the present representation will involve the use of confidential information acquired
2 in the course of the prior representation: (fd., at p. 605.) Filing documents under seal
3 will allow Plaintiff to discuss the context of the former personnel matters in order to give
4 the Court the information It needs to determine whether those matters are material to
5 Plaintiffs case.
6 The personnel issues are referenced in the following pages of the City's 106
7 pages of records (not including invoices): pages 26-38 and 39-80. The privacy Interests
8 of the parties in those matters would be best protected by allowing the discussion of
9 those matters to be filed under seal.
10
11
Dated:November4,2009
12
13
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28
Mll.l.ER v. C11Y OF CARMEL-sY-THE-8EA
CAsENo.M99513
Respectfully submitted,
LAW OFFICESOF MICHAEL W. STAMP
Attorneys for Plaintiff,
Jane Kingsley Miller
5
Ex PARTE APPLICATION
FOR ORDER PERMITTING FILING OF PLEADINGS UNili!R SEAL
0332
From:O J0242 Page: 618 Date: 1114120000 \1
1 Michael W. Stamp, State Bar No. 72785
Molly E. Erickson. state Bar No. 253198
2 lAW OFFICES OF MICHAEL W. STAMP
479 Pacific Street, Suite One
3 Monterey, California 93940
Telephone: (631) 373-1214
4 Facsimile: (631) 373-0242
5 Attorneys for Plaintiff
Jane Kingsley Miller
6
7
8
SUPERIOR COURT OF THE STATE OF CAUFORNIA
COUNTY OF MONTEREY
9 JANE KINGSLEY MILLER,
1 0 Plaintiff,
11 v.
12 CITY OF CARMEL-BY-THE-SEA, and
DOES 1 through 100,
13
14
15
Defendants.
I
Case No. M99513
Complaint filed June 17,2009
[PROPOSED) ORDER GRANTING EX
I>ARTE APPUCATION FOR ORDER
PERMITTING FILING OF PLEADINGS
UNDER SEAL
Dept.: 4 (Hon. Larry E. Hayes)
16 Having read and considered the application requesting an order permitting filing
17 of pleadings under seal, and good cause appearing therefor,
18 IT IS ORDERED THAT:
The application is granted. 19
20
1.
2. The Ptalntiff may file pleadings under seal that address the confidential
21 personnel matters referenced In the documents submitted by the City for in camera
22 review.
23
24
25
26
27
28
Dated: November ___ ,, 2009
MiLI..SR V. CITY OF CARMEL-BY-THE-SEA
CASE No. M9951J
Judge of the Superior Court
1
[PROPOSED] ORDER GRANTING Ex PARTE APPLICATION
FOR ORDER PERMrTTING FILING OF Pu;ADINGS UNDER SEAL
0333
From0730242 Page. 718 Date: 1114!20oQ PM
1 Michael W. Stamp. State Bar No. 72785
Molly E. Erickson, State Bar No. 253198
2 LAW OFFICES OF MICHAEL W. STAMP
479 Paomc Street, Suite One
3 Monterey, California 93940
Telephone: (831) 373-1214
4 Facsimile: (831) 373-0242
5 Attorneys for Plaintiff
Jane Kingsley Miller
6
7
8
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
10
11
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13
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26
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JANE KINGSLEY MILLER,
Plaintiff,
v.
CITY OF CARMEL-BY-THE-SEA, and
DOES 1 through 100,
Defendants.
MILLER V. CtTY OF CARMEL -BY-TH!:-SI!A
CASE No. M99513
Case No. M99513
Complaint filed June 17, 2009
CERTIFICATE OF SERVICE
Date: Ex Parte Application
Time: 8:45 a.m.
Dept.: 4 (Hon. Larry E. Hayes)
I
1
CERTIFICATE OF SERVICE
0334
1
2
From:Q 30242 Page: 818 Date: 1114120o0 M
PROOF OF SERVICE;
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 November 4, 2009, I served the documents described as follows:
6 EX PARTE APPUCATION FOR ORDER PERMITTING FILING OF PLEADINGS
7
8
UNDE-R SEAL; DECLARATION OF MICHAEL W. STAMP
{PROPOSED] ORDER GRANTING EX PARTE APPLICATION FOR ORDER
PERMITTING FILING OF PLEADINGS UNDER SEAL
9 on the parties in this action as follows:
10 (X)
11
by 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.
The facsimile machine I used complied with Rule 2.302 and no error was
reported by the machine.
12
(X)
13
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:
14
15
16
17
Suzanne Solomon
18 Liebert Cassidy Whitmore
153 Townsend Street Suite 520
19 San Francisco, CA 94107
20 Facsimile number.
21
(415) 856-0306
22 Executed on November 4, 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.
23
24
25
26
27
28
MllU!R V. CITY OF GARME!AlYTHE-8EA
CASE No. M99513
. ~ ~
Olga Mrkheeva
2
CERTIFlCA TE OF SERIIICS
0335
From: 8 , ~ 4 2 Page: 1126 Date: 111912009 0 PM
1 Michael W. Stamp, State Bar No. 72785
Molly E. Erickson, State Bar No. 253198
2 LAW OFFICES OF MICHAEL W. STAMP
4 79 Pacific Street, Suite One
3 Monterey, California 93940
Telephone: (831) 373-1214
4 Facsimile: (831) 373-0242
5 Attorneys for Plaintiff
6
7
8
16
17
18
Jane Kingsley Miller
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
Case No. M99513
Complaint filed June 17, 2009
REVISED EX PARTE APPUCATION FOR
ORDER PERMmiNG FlUNG OF
PLEADINGS UNDER SEAL;
DECLARATION OF MICHAEL W. STAMP
Dept.: 4 (Hon. Larry E. Hayes)
EX PARTE APPUCATION
Plaintiff Jane Kingsley Miller hereby applies ex parte for a revised order allowing
the filing under seal of all pleadings filed by Plaintiff concerning the contents of the 100
19
pages of documents already submitted under seal to the Court by the City. In the
20
alternative, Plaintiff asks that the Court determine which pleadings or portions of
21
pleadings, lf any, submitted by Plaintiff shall be filed under seal, or not under seal. As
22
an interim matter, it is advisable to file the documents under seal and allow the City to
23
comment on whether none, all, or some of the documents should stay under seal.
24
25
.Jn chambers on October 30, 2009, and in open Court that same day, counsel for
both parties set up a briefing schedule in regard to the discussion of the 1 06 pages. It
26
was originally anticipated that only one portion of Plaintiffs analysis of those documents
27
might be submitted under seal (the. portion relating to two personnel matters). The City
28
Mlll.fR V. CITY OF CARMEI.6YTHE-SEA
CASe No. M99513
1
RIMscO Ex PARTE APPL.ICIITION FOR ORDER
FOR ORDER PERMITTING FlUNG OF PlEADINGS UNOER SSAL
0336
From: 8 . . ~ 4 2 Page: 2126 Date: 111912009 0 PM
1 did not object to that process. On November 4, 2009, Plaintiff submitted an application
2 and proposed Order in the anticipation of proceeding in that fashion.
3 However, in an abundance of caution, Plaintiff now seeks a Revised Order that
4 allows Plaintiff to submit the entire analysis of the documents under seal. Plaintiff also
5 requests a Court order determining which pleadings, if any, should be kept under seal
6 by the Court.
7
8
9
10
11
12
13
14
Dated: Novembar 9, 2009 LAW OFFICES OF MICHAEL W. STAMP
Attorneys for Plaintiff,
Jane Kmgsley Miller
15 DECLARAnON
16 I, Michael W. Stamp, declare as follows:
17 I have personal knowledge of each of the facts stated below, and the opinions
18 stated in this Declaration are based upon my knowledge, experience, skill, education
19 and training. I could testify competently to each of the statements contained In this
20 Declaration.
21
22
1.
2.
I am the attorney for Plaintiff Jane Kingsley Miller.
On October 30, 2009, I appeared at a scheduled hearing in this matter in
23 Department 4 of the Superior Court. At that time, I was given a set of 106 pages of
24 documents that the City represented to be identical to the ones filed under seal on or
25 about October 28, 2009 in this Court II was my first look In this case at the documents
26 allegedly referenced by Heidi Burch In her Declaration dated August 26, 2009 filed with
27 the Motion to Disqualify.
28
MIU.J!RV. CllY Of CARMEL-HI'-THE-SI!A
CAS NO. M99513
RIMSED Ex PART!! APPUCATION FO!< ORDER
FOR ORDER PERMITTING FILING OF PLI!AOINGS UNDER SEAL
0337
From: 8 0242 Page: 3126 Date: 111912009 0 PM
1 3.
In chambers and in open court on October 30, 2009, the Honorable Larry
2 E. Hayes, Judge of the Superior Court. stated in substance that an ex parte application
3 for an order permitting Plaintiff to file documents under seal could be submitted to the
4 Court for consideration if such an order became reasonably necessary in order to
5 protect plivileged or confidential information. Judge Hayes stated only that the
6 application could be submitted; the Court did not commit to approving such a request.
7 On November 4, 2009, I submitted a proposed Order and Application permitting the
8 Court to seal a portion of the discussion of the 106 pages. due to the personnel rights of
9 two ex-employees of the City.
10 4. After further review of the 106 pages and careful comparison of them in
11 light of the statements made by Ms. Burch in her eartier declaration, I have determined
12 that out of caution,! should seek to have the entire response to the 106 pages filed
13 under seaL While Plaintiff takes no position on whether the documents should be kept
14 filed under seal or not, out of an abundance of caution, the documents should be filed
15 under seal until the Court determines whether to keep them sealed or not, or whether to
16 keep some of them under seal for any reason.
17 5. Therefore, Plaintiff now seeks a revised Order allowing !he filing under
1 a seal of all of Plaintiff's responses to the 1 06 pages.
19 6. I declare under penalty of that the foregoing is true and correct
20 and that this Declaration is executed under penalty of perjury under the laws of the
21 State of California this 9th day of 2009 in Monterey, California.
22
23
24
25
Michael W. Stamp
26 POINTS AND AUTHORITIES
27 Records may be filed under seal only with a court order. (CaL Rules of Court,
28 Rule 2.551, subd. (a).) A party requesting that a record be filed under seal must file a
MLLER V. CITY Of CAI!MS.-t>YTHE-8SA
CASE NO. M99513
3
REVISED Ex PARTE API>ucA"IlON FOR ORDER
FOR 0RD!!R PERMlTTING FILING OF PlEADINGS UNDER S!W.
0338
From: & 0242 Page: 4126 Date: 11/9/2009 0 PM
1 motion or an application for an order sealing the record. (Cal. Rules of Court, Rule
2 2.551, subd. (b)(1 ).) The motion or applicatipn must be accompanied by a
3 memorandum and a declaration containing facts sufficient to justify the sealing. (Ibid.}
4 On receipt of a record to be lodged under seal, the court clerk must retain but not file
5 the record unless the Court orders it filed. (Cal. Rules of Court, Rule 2.551, subd.
6 (d)(4}.} The order must state whether, in addition to records in the envelope or
7 container filed under seal, the order itself, the register of actions, any other court
8 records, or any other records relating to the case are to be sealed. (Cal. Rules of
9 Court, Rule .2.551, subd. (e)(2).)
1 0 Plaintiff submits the application and proposed order in conformance with the
11 Code of Civil Procedure and respectfully requests the Court to grant the application and
12 issue an order directing that Plaintiff's pleadings are filed under seal.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Dated: November 9, 2009
Mlu.ERV. CiTYOFCAAMEL-l!IV-THE..SV.
CAse No. M99513
Respectfully submitted,
LAW OFFICES OF MICHAEL W. STAMP
~
Molly E. Erickson
Attorneys for Plaintiff,
Jane Kingsley Miller
4
R:!VISEO EX PARTE APPLICATION FOR ORDER
FOR OROER PERMilT!NG F I ~ I N G 01' PLEAOINGS UNDER SEAL
0339
From: 8. 0242 Page: 5126 Date: 111912009 0 'PM
1 Michael W. Stamp, Stale Bar No. 72785
Molly E. EriCkson, State Bar No. 253198
2 LAW OFFICES OF MICHAEL W. STAMP
479 Pacific Street, Suite One
3 Monterey, California 93940
Telephone: (831) 373-1214
4 Facsimile: (831) 373-0242
5 Attorneys for Plaintiff
Jane Kingsley Miller
6
7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
Case No. M99513
Complaint filed June 17, 2009
(PROPOSED] ORDER GRANTING EX
PARTE APPLICATION FOR ORDER
PERMITTING FILING OF PLEADINGS
UNDER SeAL
Dept.: 4 (Hon. larry E. Hayes)
16 Having read and considered the application requesting an order permitting filing
17 of pleadings under seal, and good cause appearing therefor,
18 IT IS ORDERED THAT:
The applicatiOn is granted. 19
20
1.
2. Plaintiff's counsel may file pleadings under seal that address the 106
21 pages of documents submitted by the City for in camera review on October 28, 2009.
22 3. The Order applies only to the pleadings flied, and not to this Order itself,
23 the register of actions, any other court records, or any other records relating to the
24 case.
25
Dated: November 9, 2009
26
27
28
MILLER V, CITY OF CARIAI!I.-BYTHESEI\
CASE NO. M99513
Judge Of tne Superior Court
[PROPOSED] ORDeR GFWrnNG Ex PART!! AI'PuCAnON
FOR ORDER PERMITTlNG FlUNG OF PLEAD!NGS UNDER SEI\L
0340
From: 8;0242 Page: 6126 Date: 111912009 0 PM
1 Michael W. Stamp, State Bar No. 72785
Molly E. Erickson, State Bar No. 253198
2 LAW OFFICES OF MICHAEL W. STAMP
479 Pacific Street, Suite One
3 Monterey, Calffornia 93940
Telephone: (831) 373-1214
4 Facsimile: (831) 373-0242
5 Attorneys fqr Plaintiff
Jane Kingsley Miller
6
7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
15
16
17
18
Case No. M99513
Complaint filed June 17, 2009
Date: December 18, 2009
nme: 8:45 a.m.
Dept.: 4 (Hon. Larry E. Hayes)
19 FILED UNDER SEAL:
20 MEMORANDUM OF POINTS AND AUTHORITIES IN RESPONSE TO
21 CITY'S IN CAMERA DOCUMENTS
22
23
24
25
26
27
28
Mll.l.eR V. CITY OF CARMEl-BY-THE-SEA
CASE No. M99513
FUO UN""R MeMORANDUM OF POINTS ANOAu'l'HoRmes
IN RESPONS! TO CITY'S IN CAMeRA
0341
From: 8 ~ ~ 4 2 Page: 7f2f3 Date: 111912009 0 PM
1 INTRODUCTION AND SUMMARY
2 The City's motion to disqualify opposing counsel, Michael W. Stamp, is dated
3 September 1, 2009. The City's sole factual basis for the City's allegations about the
4 nature and extent of the former representations is the August 26, 2009 Declaration of
5 Heidi Burch.
6 In her Declaration, Ms. Burch described four instances of former representation
7 by Mr. Stamp between 1985 and 1987, two instances in 1991, and two instances
8 between 1998 and 2002. Ms. Burch makes characterizaiions of these representations,
9 based solely upon her non-expert review of unidentified documents. In opposition to
10 the Motion to Disqualify, Plaintiff presented declarations of Mr. Stamp, as well as the
11 declarations or the four City officials who worked with Mr. Stamp on those matters. The
12 evidence from those City officials was that the legal threshold for substantial similarity
13 had not been met, because the City had not shown that
14
15
16
17
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.
18 (Jes$$n v. Hartford (2003) 111 Cai.App.4th 698, 713 [describing link between former
19 and current representations that must exist in order to cause disqualification].)
20 To be "material." the information from the former representation must be found to
21 be directly at issue in, or have some aitical importance to, the second representation.
22 That material information must be confidential information. (Farris v. Fireman's Fund
23 Insurance Company (2004) 119 CaLApp.4th 671, 680.) The purpose of disqualification
24 is to prevent the use of former cllenfs confidences (obtained through the former
25 representation) to the former client's detriment in the current representation. (Sharp v.
26 Next Entertainment (2008) 163 Cai.App.4th 410, 426; see Rules of Professional
27 Conduct, rule 331 O(E).)
28
MII.LER v. CITY OF CARMEL -6Y THESEA
CASE No. M99513
1
FILEO UNOER SeAL: MEMOAANOUM 01' POINTS ANO AUTHORITIES
IN RESPONSE TO CITYS IN CAMERA OOCUM!<IITS
0342
1 For purposes of a disqualification motion, in reviewing the former representation
2 there is reason for a Court to differentiate between an attorney who merely "enter(s]
3 briefly on the periphery for a limited and specific purpose related solely to legal
4 questions and does not "become heavily involved in the facts of a particular matter."
5 (H. F. Ahmanson & Co. v. Salomon Bros. (1991) 229 Cai.App.3d 1445, 1457.) The
6 rationale is that no confidential infonnatlon material to the current dispute would
7 nonnally have been imparted to the attorney by virtue of the nature of the former
8 [limited] representation: (/d., at p. 1454; emphasis added.)
9 On October 23, 2009, this Court recognized that the Burch Declaration did not
10 appear to be admissible, and directed the City to provide the Burcl)-referenced
11 documents to the Court in camera. On October 30, 2009, the Court required the City to
12 tum over those documents to Mr. Stamp. The documents are 106 pages, including two
13 pages of duplicates.
14 A careful review of those documents- the entire factual basis for the Cily's
15 motion- shows that Ms. Burch's characterizations of the documents were exaggerated,
16 confused. misleading, and inaccurate. By comparing the Burch Declaration to the
17 documents, it is apparent that Ms. Burch stretched the facts in efforts to create
18 materiality and confidentiality. The review also demonstrates that the City has not met
19 its burden of producing evidence sufficient to establish disqualification of counsel. The
20 actual documents should be read carefully by the Court with a critical eye.
21 Format ofplaintiffs Counsel's Review of Documents
22 We address the eight claims of Ms. Burch in this pleading. For each claim in the
23 Burch Declaration, we (1) quote the declaration, (2) identify the page numbers of the
24 City's 106 pages of records lodged with the Court, and (3) address the Burch claim in
25 light of the actual documents. In doing so, we compare Ms. Burch's statements with
26 the actual records selected by Burch to be included in the 1 06 pages. When .
27 appropriate in order to provide context. we also provide references to the declarations
28
MILLERV. C11YOF CAI'IIolL-IlV-THE-Sli.A
CASE No. M99513
2
FILED UNDER SEAl: MEMORANDUM OF POINTS AND AtJniORITII!S
IN RESPONSE TO CITY'S IN CAMERA DocUioii!"'TS
0343
From: Page: 9126 Date: 1119/2009 0 PM
1 by the City's former top officials (Doug Schmitz:, Jere Kersnar, Jerry Pullen, and Jane
2 Miller) filed October 8, 2009.
3 Ms. Burch inaccurately describes each matter, as the records show. The legal
4 question - whether confidential information was provided by the City to Mr. Stamp that
5 is material to Ms. Miller's case - requires a careful analysis of the actual issues involved
6 in each matter, including the records upon which Ms. Burch bases her claims.
7 BURCH CLAIM NO.1.
8 Description bv Cit (Heidi Burch Declaration)
9
10
11
12
13
14
15
16
17
I have reviewed City documents reflecting that in 1985,
Michael W. Stamp ofthe 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. (Burch Decl., p. 2, 1[4.)
Page Numbers: In camera review ("ICR") pp. 22-25.
18
19
Discussion
20
This is a four-page letter dated December 3, 1985 from Mr. Stamp to City
21
Administrator Doug Schmitz, commenting on a proposed personnel ordinance prepared
22
by the City (not by Mr. Stamp; see Pullen Dec!., 117). Celifomia law provides that aU
23
records "prepared, owned, used or retained" by public agencies are public records
24
available for inspection and copying by every person in California. (Gov. Code, 6250
25
et seq.; 6252.) The ordinance sent to Mr. Stamp was a public record that had already
26
been circulated to the City's employees' union. the police officers' union, and the fire
27
department employees, among others. Mr. Schmitz asked for Mr. Stamp's comments
on the unions' comments, which were also public records. It is axiomatic that a public
28
3
"'M"'ILLE:-:::::-R


CASE NO. M99513 IN RESPONSETO CITY'S IN CAMERA DOCUMENTS
0344
From: K 042 Page: 10/26 Date: 111912009 0 .l PM
1 record is not a confidential" record of the City, particularly one that had already been
2 reviewed in writing by the employees and their unions and their consultants .
. 3 As ICR pages 22 through 25 show, Mr. Stamp in 1965 did not address the issues
4 in lhe way that Ms. Burch describes them In her Declaration. Mr. Stamp's advioe to the
5 City was of a general legal nature. Issues raised in Mr. Stamp's comments regarding
6 the unions' comments were as follows: discussion of adopting resolutions Instead of
7 ordinances (ICR p. 22), grammar and typographical errors (ICR p. 22), probationary
8 period proposals by various unions (ICR p. 23), notice proposals by police (ICR p. 23),
9 the request of the policy union to have their own legal counsel review the. issues (ICR p.
10 23), general law relating to disciplinary actions for police officers (ICR p. 23), general
11 law relating to disciplinary actions (ICR p. 24), maternity leave under law (ICR p. 24),
12 and a possible "city gift* policy (ICR p. 25). The draft ordinance was proposed (as Ms.
13 Burch acknowledges), not adopted (Stamp Decl .. filed October 8, 2009, 'II 16).
14 Mr. Stamp's comments on public records did not relate to any particular
15 employee, and all are of general application. They do not reflect any contldential
16 Information provided by the City to Mr. Stamp. The documents show that Mr. Stamp
17 "en!erfedl briefly on the periphery for a limited and specific purpose related solely to
18 legal questions." (H. F. Ahmanson & Co. v. Salomon Bros. (1991) 229 Cal.App.3d
19 1445, 1457.) No "confidential information material to the current dispute would normally
20 have been imparted to the attorney by virtue of the nature of the former representation.
21 (/d., at p. 1454.) There is no record or reasonable inference of any confidential City
22 information provided by the City to Mr. Stamp during this representation, as required to
23 be found as a basis for disqualification. (fd., at p. 1460; Jessen v. Hartford (2003) 111
24 Cai.App.4th 698, 713; Faughn v. Perez (2006) 145 Cal.App.4th 592, 605.) None of the
25 issues raised in Mr. Stamp's comments Is material to Ms. Miller's case, and the only
26 information provided to Stamp by the City consisted of public recotds.
27
28
MILLER V. CiTY OF CARMEL-BY-THE-SEA
CASENO.M99513
4
FJL.EO UNDER SEAL: MEMORANOUM OF POINTS AND Al.iTHORrTI!'.S
IN RESPONSE ro CrT'$ [N CAUEAA DocUMENTS
0345
From: Page: 11126 Date: 1119/2009 0, PM
1
BURCH CLAIM NO. 2.
2 Pesqjption by Qity (Heidi Burch Qec!arationl
3
4
5
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 what tasks should .be Included in a City employee's
job description. (Burch Decl., p. 2. 11 5.)
7 Page Numbers: ICR p. 81.
8 Discussion
9 This is a one-page August 20, 19861etter from Mr. Stamp to Jerry Pullen, the
10 City's Personnel Officer, with a copy to the City Administrator Schmitz, about the job
11 description for "Sweeper Operator." The question discussed is the very simple question
12 as to whether the statement "other work as required" includes cleaning the sidewalk
13 using a sideWalk cleaner. The only information that was provided to Mr. Stamp by the
H City was the job description for sweeper Operator" (see ICR p. 81). Job descriptions
15 are public records. Mr. Stamp's letter does not provide legal advice "about what tasks
16 should be included in a City employee's job description, as Ms. Burch claims.
17 There is no record or reasonable inference of any confidential City infonnatlon
18 provided by the City to Mr. Stamp during this representation, as required to be found as
19 a basis for disqualification. (Jessen v. Hartford (2003) 111 Cai.App.4th 698, 713; H. F.
20 Ahmanson & Co. v. Salomon Bros., supra, 229 Cai.App.3d 1445, 1460.) The
21 documents show that Mr. Stamp "enter{edl briefly on the periphery for a limited and
22 specific purpose related solely to legal questions." (Ahmanson & Co. v. Salomon Bros.,
23 supra, 229 Cai.App.3d at 1457.) No confldentlallnfonnation material to the current
24 dispute would normally hava been imparted to the attorney by virtue of the nature of the
25 former representation." (ld., at p. 1454.) Further, none of the issues raised in Mr.
26 Stamp's letter is material in Ms. Miller's case. Further, there are no factual similarities
27 with Ms. Miller's case, which does not raise Issues of sweeper operators, sidewalks, or
28
Mli .. I.ERV.
CASE No. M99513
5
FIU!O UNDER SEAL: MEMORANDUM OF PoiNTS AND AuTHoRmES
IN RESPONSE TO CITY's IN CAMERA DocUMENTS
0346
From: a::0242 Page: 12126 Date: 111912009 0 PM
1 "other work as required." Tha City records do not support a claim of a substantial
2 relationship or confidential infonnation material to the current representation.
3 BURCH CLAIM NO. 3.
4 Description by CIIV <Heidi Burob Declaration)
5
6
7
8
I have reviewed City documents, reflecting that in 1986,
Michael W. Stamp of the Law Offioes of Michael W. Stamp
provided legal advice to thenCity Administrator Schmitz
about the parameters of at-will employment as it related to
City employees. (Burch Decl., p. 2, 1f 6.)
9 Page Numbers: ICR p. 89.
10 Diss;ussion
11 Ms. Burch misstates the issue and the context of the cited material. The only
12 1986 document even remotely connected to this Citv claim is a tour-sentence
13 transmittal note from Mr. Stamp to City Administrator Schmitz referencing a recent
14 published Federal case (ICR p. 89). The note is a routine update provided by an
15 attorney for general distribution, similar to a newsletter. The case addressed
1-6 probationary employment In general. No confidential City matters are discussed at ICR
17 page 89. The "parameters of at will employment" are not discussed_ The transmittal
18 note was in relation to a published case which is available to the general public.
19
None of the issues raised in Mr. Stamp'::; 1986 transmittal note or the federal
20 case is material in Ms. Miller's case. The documents show that Mr. Stamp "enter{ed]
21 briefly on the periphery for a limited and speciflc purpose related solely to legal
22 questions: (Ahmanson & Co. v. Salomon Bros., supra, 229 Cai.App.3d at p. 1457.)
23 No confidential lnfonnation material to the current dispute would normally have been
24 imparted to the attorney by virtue of the nature of the fonmer representation." (/d., at p.
25 1454.) There is no record or reasonable inference of any confidential City information
26 provided by the City to Mr. Stamp during this representation, as required to be found as
27 a basis for disqualification. (/d., at p. 1460; Jessen v. Hartford, supra, 111 Cai.App.4th
28 698, 713; Faughn v. Perez, supra, 145 Cai.App.4th 592, 605.) Futther, there are no
MILLER v. CITY OF CARMcLBY-lHE..SEA
CASE No. M9S513
6
FILED UNDER SEAL: MEMORANDUM OF POINTS AND AuTHORITIES
IN RESPONSE TO CtiY'S IN CAMERA DOCUMENTS
0347
From: e:o042 Page: 13126 Date: 11/912009 0 PM
1 factual similarities with Ms. Miller's case, which does not raise issues of probationary
2 employment The City records do not support a claim of a substantial relationship or
3 confidential information material to the current representation.
4 BURCH CLAIM NO. 4.
5 Description by City (Heidi Burch Declaration)
6
7
8
:g
10
11
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. (Burch Dec!., p. 2, 1T 7.)
12
Page Numbers: ICR pp. 82-85, 86-88.
Discussion
13
14
Ms. Burch misdescribes and distorts the 1987 documents in a troubling effort by
15
the City to link them to the "personal relationship" of Mr. Guillen and Ms. Burch am:j of
Mr. Guillen and Ms. Christie Miller in the current case. The issue in the 1987 letter was
16
17
"nepotism policy" (ICR pp. 82, 86), not personal relationships" of the City's top official
18
and his subordinates.
19
These documents are two letters, dated March 6, 1987 and June 3, 1987, from
20
Mr. Stamp to Jerry Pullen. The total is seven pages, including three pages of
21
attachments. The March 6, 19871etter Identifies policy issues involved with nepotism
22
policies (which the City did not have). The letter also includes a minor clerical edit of
23
the signature lines of a standard form for an employee deferred compensation request
24
(ICR pp. 84-85), which Ms. Burch does not try to relate to the current case. The June 3,
25
1987 letler concerns a very rough working draft" of a possible nepotism policy, with
28
recommendations from Mr. Stamp that the City circulate the draft extensively and that
27
the "City's personnel consultants" review the rough draft. The City's personnel
28
consultants were the outside lawyers that advised the City on its personnel matters.
Mr. Stamp was not the City's personnel consultant. (See Schmitz Decl., 1!8: Pullen
7
MlU.!!R V. CITY OF CARM!!l...SV-THE-SEA FILED UNOER SEAl.: MEMORANDUM OF POINTS AND AlJTHORITI!'i$
CASE No. M99513 IN RESPONSE TO CITY'S IN CAMaRA DocuMENTS
0348
Page:14/26 Date:1119120090 PM
1 Decl., 114; Miller Decl., 1!6; Kersnar Peel., 1J2; Stamp Peel., 1J B. all filed October 6,
2 2009.)
3 Nepotism is not an Issue in this case. Even if there is a nepotism policy that was
4 developed sometime since 1967 by someone working for the City, the City's policies
5 and ordinances are public records in any event. None of the issues raised in the two
6 1967 letters about nepotism is material in this case. The documents show that Mr.
7 Stamp enterfecl] briefly on the periphery for a limited and specific purpose related
8 solely to legal questions.' (H. F. Ahmanson & Co. v. Salomon Bros., supra, 229
9 Cai.App.3d 1445, 1457.) No "confidential information material to the current dispute
10 would normally have been imparted to the attorney by virtue of the nature of the former
11 representation." (ld., at p. 1454.) There is no record or reasonable Inference of any
12 confidential City information provided by the City to Mr. Stamp during this
13 representation, as required to be found as a basis for disqualification (/d., at p. 1460;
14 Jessen v. Hartford, supra, 111 Cai.App.4th 696, 713; Faughn v. Perez, supra, 145
15 Cai.App.4th 592, 605.) Further, there are no factual similarities with Ms. Miller's case,
16 which does not raise issues of nepotism. The City records do not support a claim of a
17 substantial relationship or confidential information material to the current
1 a representation.
19 BURCH CLAIM NO. 5.
20 Descdption by City <Heidi Byrch Declaration)
21
22
23
24
I have reviewed City documents, reflecting that in 1991,
Michael W. Stamp provided legal advice to then-City
Administrator Schmitz regarding, the drafting of employment
agreements between the City and certain employees.
(Burch Decl., p. 2, 118.)
25 Page Numbers: ICR pp. 90-91.
26
27
28
MILLER. CITY OF CARMEL -BY THE-SEll
CAsE No. M99513
B
FILED UNDER SEI\L: MEMORANDUM OF PoiNTS AND AliTHORITIES
IN RESPONSE TO CITY's IN CAMERA DOCUMENTS
0349
From: 8, 042 Page: 15126 Date: 11/9/2009 0) PM
1 Discussion
2 Ms. Burch materially misstates the contents of tlle document. This one-page
3 August 30, 1991 letter from Mr. Stamp to City Administrator Schmitz encloses a two-
4 paragraph 'rough d,raft" of a form that 'might be" used for police recruits to
5 acknowledge training costs by tlle City. The draft acknowledgment form expressed the
6 City's 'great concerns when officers leave their employment only a short time after
7 receiving their training." The letter specificallY states that the ackngw!edgment 'js not
8 an 'emolovment ag(!iement' ... : The letter does not contain 'legal" advice on
9 drafting of employment agreements," as Ms. Burch asserts. Employment agreements
10 are contracts describing the terms and conditions of employment. Employment
11 agreements are public records. (Gov. Code, 6254.8.} Because they are enforceable
12 contracts, employment agreements are very different from an unenforceable draft
13 'acknowledgment" which "does not obligate" either the City or the employee "to
14 anything." (ICR p. 90.}
15 None of the issues raised In Mr. Stamp's letter or attachment is material in this
16 case. The documents show that Mr. Stamp enter[ed] briefly on the periphery for a
17 limited and specific purpose related solely to legal questions." (H. F. Ahmanson & Co.
16 v. Salomon Bros . supra, 229 cai.App.3d 1445, 1457.) No "confidential information
19 material to the current dispute would normally have been imparted to the attorney by
20 virtue of the nature of the former representation. (/d., at p ~ 1454.} There is no record
21 or reasonable inference of any confidential City information provided by the City to Mr.
22 Stamp during this representation, as required to be found as a basis for disqualification
23 (/d., at p. 1460; Jessen v. Hartford, supra, 111 Cai.App.4th 698, 713; Faughn v. Perez,
24 supra, 145 Cai.App.4th 592, 605.) Further, there are no factual similarities with Ms.
25 Miller's case. which does not raise issues of acknowledgments, police officer training, or
26 City resources spent on !raining costs for police officers. The City records do not
27 support a claim of a substantial. relationship or confidential information material to the
28 current representation.
MILLER V, CITY OF CARMiiL.JlYTHESEA
CAS!! No. M99613
9
FILED UNDI!F! SEAL: MEMORANOVM OF POINTS AND AuTHORmes
IN RESPONSE TO CITY'S IN CI>.MERA DocUMENTS
0350
F r o m : ~ 042 Page: 16/26 Date: 111912009 ol PM
1 BURCH CLAIM NO. 6.
2 Description by Ctty{Heidi Burch Declaration)
3
4
5
6
7
8
9
I have reviewed City documents, reflecting that in 1991,
Michael W. Stamp 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 reflecl that Mr. Stamp provided legal advice
to the City regarding investigations of sexual harassment
complaints. {Burch Decl., p. 2, 1J 9.)
10 Page Numbers: ICR pp. 1-17.
11 Discussion
12 This is a one-page October 28, 1991 letter with 17 pages of attachments from
13 Mr. Stamp to Jerry Pullen, with a copy to Doug Schmitz. It contains general legal
14 advice on the City's existing (as of 1991) sexual harassment policy. The only
15 infonnation provided by the City to Mr. Stamp was a public record: the then-existing
16 policy. As a public record, the policy was not confidential. The attachments to the letter
17 ar.e photocopies of published materials generally describing the law, comparable to
18 what Is found in any treatise, or now can be found on the Internet or from any law
19 library.
20 None of the issues raised in Mr. Stamp's letter or attachment is material in this
21 case. The documents show that Mr. Stamp "enter[ed] briefly on the periphery for a
22 limited and specific purpose related solely to legal questions. (H. F. Ahmanson & Co.
23 v. Salomon Bros., supra, 229 Cai.App.3d 1445, 1457.) No "confidential infonnation
24 material to the current dispute would nonnally have been imparted to the attorney by
25 virtue of the nature of the former representation: (/d., at p. 1454.} There is no record
26 or reasonable inference of any confidential City infonnation provided by the City to Mr.
27 Stamp during this representation, as required to be found as a basis for disqualificalion.
28 (ld., at p. 1460; Jessen v. Hartford, supra, 111 Cai.App.4th 698, 713: Faughn v. Perez,
MILLERV. CITY OF CARMEL-BY-THe.SEA
CAsE NO. M99513
10
FI\.I'D UNDER S5A1.: MEMORANDUM OF P01NTS Ai'IOA\JTHORITIES
IN RESPONSE TO Crr'l's IN CAMERA DoCUMO:NTS
0351
From:83C42 Page: 17126 Date: 11/9120090 PM
1 supra, 145 Cai.App.4th 592, 605.) The City records do not support a claim of a
2 substantial relationship or confidential information material to the current
3 representation.
4 BURCH CLAIM NO. 7.
5 Description by City (Heidi Burch Declaration}
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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 medical leave. 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 the matter. (Burch
Decl., p. 2, 1!10.)
Page Numbe1'8: In camera review ('ICR") pp. 39-80, 92-105.
Discussion
These 56 pages concern a 1998 disciplinary matter involving Richard Miner, a
maintenance worker in the City's Forest and Beach Department, a job similar to that of
a trash collector. (ICR p. 39.) Mr. Miner reported to the Forest, Parks and Beach
Director, Gary Kelly, whose office was located several blocks from City HaiL (Ibid)
Mr. Miner had a history of disciplinary problems arising from inadequate work
performance going back to 1996. (ICR pp. 39-41.) In 1996, the records show, he was
suspended for 15 days for not doing his job. (ICR p. 39.) By 1997, he was given
another unsatisfactory job evaluation by Director Kelly. (ICR p. 40.) Starting in June
1998 (ICR p. 92), Mr. Stamp provided legal services in regard to a proposed disciplinary
action. In July 1998, Kelly recommended Mr. Miner's termination because Mr. Miner
was not doing his job. (Ibid.)
In July 1998, Mr. Miner hired an attomey, Mary-Margaret O'Connell, to represent
him, and Mr. Stamp was in contact with Ms. O'Connell. (ICR p. 77.) Ms. O'Connell
requested one more chance" for Mr. Miner, and did not contest the factual or legal
basis for discipline. (ICR p. 40.) In September 1998, an agreement was reached with
MILLERV. CiTY OF CARMEL.BY-THESEA
CASE No. M99513
11
FILEO !JNOER SEAL: MEMORANOUM OF POINTS ANO AU'THORITII!S
IN RESPONSE TO Cn'l''S IN CAMERA DocuMENTS
0352
From 8. 042 Page: 18/26 Date: 111912009 0 PM
1 Mr. Miner and his counsel, whereby Mr. Miner was suspended for 30 days. He was
2 allowed to take sick leave. He could return to work if cleared for duty by a psychologist
3 retained by the City to evaluate his mental health. (ICR p. 66.) If Mr. Miner was not fit
4 for duty, he could not return to work. (ICR p. 67.) The negotiated one more chance"
5 agreement related only to the specific facts of Mr. Miner and his disciplinary history, and
6 did not apply to other employees as a general policy. (ICR pp. 66-71.) Mr. Miner was
7 suspended from October 2, 1998 to November 12, 1998. (ICR p. 40.) While he was on
8 suspension, he violated direct requirements about staying away from the workplace and
9 interfering (Ibid.). Kelly proposed another 15-day suspension (ICR p. 39). In January
10 1999, the City proposed termination and Miner's attorney submitted his application for
11 retirement before the City took further action. (ICR p. 80.)
12 The issues involved with Mr. Miner centered upon his unsatisfactory job
13 performance in cleaning up the beach. (ICR pp. 39-42.) His department head (Director
14 Kelly) made exceptional efforts to get Mr. Minter to do his job. (ICR pp. 39-42, 66-71.)
15 Mr. Miner's own attorney eventually sought retirement for him In order to avoid
16 termination for years of poor performance and progressive discipline. (lCR p. 80.)
17 The City's 56 pages of documents relating to Mr. Miner includes all of the
18 attachments to the City's October 1998 notice of suspension to Mr. Miner (ICR pp. 39-
19 65). The pages do not establish or imply any similarities of facts or of legal questions
20 with Ms. Miller's case, which involves se)(ual harassment, gender and age
21 discrimination, and forced retl rement.
22 Ms. Burch's sole attempt to link the Miner matter to the current case is a
23 misleading claim that M r ~ Miner's matter included issues related to medical leave."
24 (Burch Dec!., p. 2, 1T 10.) In fact, Mr. Miner's matter "related to medical leave" only In
25 the sense that Mr. Miner took accrued sick leave and was unable to satisfactorily
26 perform his job duties (ICR 66-71 ). Under basic personnel law, every employee in
27 every job has the right to take accrued sick leave. That law is not confidential. It Is not
.28 a material similarity to the Miller case.
MILLER V. CI'I'Y OF CARMEL-t!V-THe-5EA
CASE NO. M\19513
12.
FILED UNDER SEAL: MEMORANDUM OF POINTS ANO AUTHORITIES
IN RESPONSE TO CITY'S IN C A M E ~ DOCUMENTS
0353
Page: 19126
1 There is no substantial or material similarity in legal or factual issues between
2 this brief former representation and Ms. Miller's claims. In Feughn v. Perez (2006) 145
3 Cai.App.4th 592, the attorney had formerly represented a hospital parent company In
4 defending fiVe litigation matters to childbirth in fiVe different hospitals. "All of the cases
5 primarily involved birth injuries to Infants" (id., at p. 597) and one involved the
6 postpartum death of a mother (600). It was undisputed that the attorney had been
7 heavily involved in the facts of each of the five litigation matters (id., at pp. 598-800}.
8 Less than a year after the last of the five matters, the attorney took a case representing
9 plaintiffs suing a hospital with the same parent company arising from birth injuries to
10 infant Katie Faughn (id., at 600}. The parent company moved to disqualify the attorney.
11 The Court of Appeal looked carefully at the moving party's allegations regarding
12 the similarities between the former representations and the current representation with
13 regard to claims handling, and facts. The moving party's allegations were not factually
14 supported, and the allegations required inferences by the Court. The Court found that
15 those inferences were not supported by the record, rejected the claim of conflict, and
16 reversed the trial court's disqualification order. (/d., at pp. 605-610.}
17 Here, as in Faughn, there is no substantial evidence that the Miner disciplinary
18 action is related to Ms. Miller's case, either in factual or legal similarities. The decision
19 makers, the processes, and the facts are different. Both the Burch Declaration and the
20 City's records fail to provide any evidence or support for an inference that the City gave
. 21 confidential information to Mr. Stamp In the Miner disciplinary action that is material to
22 Ms. Miller's case.
23 BURCH CLAIM NO. 8.
24 Description by City I Heidi Burch Declaration)
25
26
27
28
l have reviewed documents reflecting that in 2001 and 2002,
Michael W. Stamp of the Law Office of Michael W. Stamp
represented the Cily in a matter involving an employee
accused of, among other things, inappropriate treatment of
female employees as well as issues related to medical
MILLERV. CITY OF CAAMEL-BYlHE..SEA
CASE No M99!i13
13
FILED UNOER SEAL: MEMORANDUM OF POINTS AND
IN RESPONSE TO CITY'$ IN CAM EM DocuMENTS
0354
1
2
3
4
5
From: K 0242 Page: 20/26 Date: 1119/2009 0 J PM
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 scope of the investigation of the allegations
against the employee, and various options to resolve the
matter. {Burch Dec!., p. 2, 1f 11.)
6 Page Numbers: ICR pp. 26-38.
7 Discussion
8 This matter involved John Willett, who worked for the fire department and
9 reported to the Fire Chief at the fire station several blocks away from City Hall. Mr.
10 Willett was first injured at work in 1996 and had knee surgery. He returned to work.
11 (ICR p. 34.) Mr. Stamp was not involved in regard to the 1996 injury.
12 In June 2001, a disclplinaiY matter arose relating to Mr. Willett's alleged efforts to
13 undermine the Fire Chief. {ICR pp. 31-32.) The City retained Mr. Stamp on the
14 disciplinal}' action only. (ICR p. 32; Stamp Dec!. filed October 8, 2009, 1!26.) The
15 City's concerns included claims that Mr. Willett was snooping in the Chiefs briefcase,
16 accessing confidential information, being untruthful, had a poor working relationship
17 with at least one female subordinate at the fire station, and was being insubordinate to
18 the Chief. (ICR p. 29.)
19 Shortly after the City notified Mr. Willett of possible discipline, he again injured
20 his knee at work and sought workers' compensation relief. (ICR p. 36.) The City's
21 investigation into the disciplinary action against Mr. Willett reached only "the V&IY early
22 stages" (ICR p. 36) and was never compleled (ICR p. 38). The City's investigation was
23 held in abeyance for near1y a year (ICR p. 38) while each side's workers' compensation
24 attorneys settled the matter by agreeing to retirement (ICR p. 36 [settlement proposal;
25 City did not provide the actual settlement in the ICR records]). (See, e.g., ICR pp. 26-
26 27, 34-37 [settlement letters not copied to Mr. Stamp], 32-33 [correspondence to
27 workers' compensation counsel].) The workers' compensation and disability claims
28 were handled by the City's outside workers' compensation law firm Kiely & Schrader
MII .. IJ:R V. CrT'f OF CI\RMI'L-BY-THE-SEA
CAs No. M99513
14
F!lEO IJNOER SEAL: MEMORANDUM OF POINT$ AND A\JTHQRITIE5
IN RESPONSE TO CITYS IN CAMERA DOCUMENTS
0355
From: 83042 Page: 21126 Date: 11/912009 0 PM
1 attorney and by Jane Miller for the City. (ICR pp. 32-33, 34-36.) The matter settled
2 primarily on the basis of the disability issues, and the City dropped the disciplinary
3 action. {ICR pp. 34-37.) Mr. Willett retired in 2002 on the disability basis arising from
4 his knee injuries (see ICR pp. 34-37.)
5 Despite Ms. Burch's effort In her Declaration to link Mr. Willett's knee injury to the
6 current Mmer case, there is no linkage, much less materiality. TheCity's motion, citing
7 Ms. Burch's declaration, tries to enlarge Mr. Willett's knee injuries into a number of
8 personnel matters invoMng medical leaves." (Motion, p. 7, lines 15-16; p. 8, lines 6-9.)
9 The exaggeration by Ms. Burch is misleading.
10 The City also overlooks the fact that Jane Miller handled this matter for the City,
11 and that Ms. Miller could have provided the confidential infonnation regarding Mr.
12 Willett to any attorney retained by her. As the Sixth District Court of Appeal hek! in a
13 similar srtuatlon,
14
15
16
17
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20
21
22
23
24
25
26
27
28
disqualification would do nothing to protect the
attorney-client privilege because the client still has the
infonnation and may pass it on to new counsel, leaving the
adversary in the same position.
(Roush v. Sesgate Technology LLC (2007) 150 Cai.App.4th 210, 220; Fox Searchlight
Pictures v. Paladino (2001) 89 Cai.App.4th 294, 303-304.)
Mr. Willett's matter did not involve the City Administrator or any other City Hall
employee, and did not involve gender or age discrimination or forced retirement. Ms.
Miller's case does not involve worl<ers' compensation or a disciplinary action. There Is
no material similarity between Mr. Willett's matter and Ms. Miller's case.
There is no similarity in legal or factual issues between this brief fanner
representation and Ms. Miller's claims. Here, as in Faughn v. Perez, supra, 145
Cai.App.4th 592, there is no evidence in the record that the 2001-2002 Willett
disciplinary action is related to Ms. Miller's case, either in factual or legal similarities.
The issues, the processes. and the facts are dramatically different. Both the Burch
Declaration and the City's records fail to provide any evidence or support for an
15
MILLERV. CITY OF CARMEL-BY-THESEA FILED UNDER SEAL: MEI<IORANOUM OF PoiNTS liND AlflHOimiES
CASE No. M99513 IN REsroNSE TO CfTY's IN CAMERA Doci..IMENiS
0356
From: 8:. 042 Page: 22/26 Date: 111912009 OJ PM
1 inference that the City gave confidential information to Mr. Stamp in the Willett matter
2 that is material to Ms. Millers case.
3 DOCUMENTS NOT ADDRESSED BY BURCH
4 ICR pages 18 to 21 and page 106 are not addressed by Ms. Burch's declaration.
5 ICR pages 75 and 76 are duplicates of ICR pages 98 and 99 ..
6 ICR pages 18 to 21 indicate an employee complaint that was not prosecuted.
7 ICR page 106 shows inquiries about the possible use of volunteers to enforce parking
8 regulations, similar to those volunteers who helped with the Monterey Farmer's Market.
9 There is no record or reasonable inference of any material confidential City information
10 provided by the City to Mr. Stamp during this representation, as required to be found as
11 a basis for disqualification (H. F. Ahmanson & Co. v. Salomon Bros., supra, 229
12 Cai.App.3d 1445, 1460; Jessen v. Hartford, supra, 111 CatApp.4th 696, 713; Faughn
13 v. Perez, supra, 145 Cai.App.4th 592, 605).
14 CONCLUSION
15 The City has failed to meet tts burden on the disqualification motion.
16 Disqualification is not supported, and should not be ordered.
17
18
19
20
21
22
23
24
25
26
27
28
Dated: November 9, 2009
MlLLERV. CI1YOF CARMELBY-lHE-SEA
CASE NO. M99513 .
Michael W. Stamp
Molly Erickson
Attorneys for Plaintiff, Jane Kingsley Millar
16
FilED UNOER SEAl.: MEMORANDUM OF POINTS AND AUlHORITIES
IN RESPONSE TO CITY'S IN CAMERA DocUMENTS
0357
From: S: 042 Page: 23126 Date: 11/912009 0) PM
1 Michael W. Stamp, State Bar No. 72785
Molly E. Erickson, State Bar No. 253198
2 LAW OFFICES OF MICHAEL W. STAMP
479 Pacific Street, Suite One
3 Monterey, California 93940
Telephone: (831) 373-1214
4 Facsimile: (831) 373-0242
5 Attorneys for Plaintiff
Jane Kingsley Miller
6
7
8
9
SUPERIOR COURT OF THE STATE OF CAUFORNIA
COUNTY OF MONTEREY
10
11
12
JANE KINGSLEY MILLER,
Plaintiff,
v.
CITY OF CARMEL-BY-THE-SEA, and
13 DOES 1 through 100,
14
15
16
Defendants.

Case No. M99513
Complaint filed June 17. 2009
DECLARATION OF MICHAEL W. STAMP
IN RESPONSE TO CITY'S IN CAMERA
DOCUMENTS
Date:
Time:
Dept.:
December 18, 2009
8:45a.m.
4 (Hon. larry E. Hayes)
17 I, Michael W. Stamp, declare as follows:
1 B I have personal knowledge of each of the facts stated below, and the opinions
19 stated in this Declaration are based upon my knowledge, experience, skill, education
20 and training. I could testify competently to each of the statements contained in this
21 Declaration.
22
23
1.
2.
I am an attorney licensed to practice law in the State of California.
I prepared the Memorandum of Points and Authorities In Response to
24 City's In Camera Documents and the Memorandum of Points and Authorities In
25 Response to the City's In Camera Documents (Disciplinary Actions), filed concurrently
26 with this Declaration. The facts stated herein are derived from the documents
27 submitted by the City in its in camera production. To the best of my knowledge, the
26 facts as stated are true and correct.
MIW!RV.
CAsE No. 1.199513
1
Deci.ARATION OF MICHI>.El.. W, STAMP
IN RESPONSE TO CITY'S IN CI\MERA DOCUMEt>ll'S
0358
From: S: 042 Page: 24126 Date. 111912009 0 PM
1 3. As explained in the Declaration of Michael W. Stamp in Support of
2 Opposition to Motion by Defendant City of Carmel-by-the-Sea to Disqualify Plaintiff's
3 Counsel, filed October 8, 2009, in this case I provided personnel-related services to
4 Cannel only on specific occasional matters, and only specifically when requested to do
5 so. The matters referenced in the Burch Declaration show eight such occasions over
6 nearly 20 years, and they reflect relatively few hours of work per each assignment. The
7 City regularly consulted With other lawyers including employment specialists Liebert
8 Cassidy, along with the City Attorney and other outside counsel.
9 4. For a more comprehensive analysis of the occasional representation of
10 the City on personnel matters, I refer the Court to the declarations filed on October 8,
11 2009 with the Opposition to the Motion to Disqualify, specifically including the following:
12 Declaration of Douglas J. Schmitz, Declaration of Jerry Pullen, Declaration of Jere A.
13 Kersnar, and the Declaration of Jane Kingsley Miller in Support of Opposition to Motion
14 by Defendant City of Carmel-by-the-Sea to Disqualify Plaintiff's Counsel.
15 5. I declare under penalty of p e ~ u r y that the foregoing is true and oorrect
16 and that this Declaration is executed under penalty of perjury under the laws of the
17 State of California this 9
111
day of November 2009 in Monterey, California.
18
19
20
21
22
23
24
25
26
27
28
MILLER V. CITY OF CARMEL-BY-THE-SI!A
CASE No. M99513
Michael W. Stamp
DECLAAATION OF MICHAI!L W. STAMP
IN RESPONSE TO CITY'S IN CAI.U!AA DOCUMENTS
0359
From: a: 042 Page: 25126 Date: 111912009 0" PM
1 Michael W. Stamp, State Bar No. 72785
Molly E. Erickson, State Bar No. 253198
2 LAW OFFICES OF MICHAEl W. STAMP
479 Pacific Street, Suite One
3 Monterey, California 93940
Telephone; (831) 373-1214
4 Facsimile: (831) 373-0242
5 Attorneys for Plaintiff
6
Jane Kingsley Miller
7
8
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
JANE KINGSLEY MILLER,
Plaintiff,
v.
CITY OF CARMEL-BY-THE-SEA, and
DOES 1 through 100,
Defendants.
MILLERV. CfJYOF CARMI!!L-BY'fHE:.S"'A
CASE No. M99513
Case No. M99513
Complaint filed June 17, 2009
CERTIFICATE OF SERVICE
Date: December 18, 2009
Time: 8:45a.m.
Dept.: 4 (Hon. Larry E. Hayes)
I
1
CERTIFICATl! OF SI!!RVICI!!
(
~ :
!
' t:
t
I
l
0360
1
2
From 8 0242 Page: 26126 Date: 111912009 0 I PM
PROOF OF SERVICE
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
6
7
8
9
On November 9, 2009, I served the documents described as follows:
REVISED EX PARTE APPLICATION FOR ORDER PERMITTING FILING OF
PLEADINGS UNDER SEAL; DECLARATION OF MICHAEL W. STAMP
FILED UNDER SEAL:
MEMORANDUM OF POINTS AND AUTHORITIES IN RESPONSE TO
CITY'S IN CAMERA DOCUMENTS
DECLARATION OF MICHAEL W. STAMP IN RESPONSE TO
10 CITY'S IN CAMERA DOCUMENTS
11 [PROPOSED] ORDER GRANTING REVISED EX PARTE APPLICATION FOR
ORDER PERMITTING FILING OF PLEADINGS UNDER SEAL
12
on the parties in this action as folloW5:
13
(X)
14
15
by 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.
The facsimile machine I used complied with Rule 2.302 and no error was
reported by the machine.
16
Suzanne Solomon
17 Liebert Cassidy Whrtmore
153 Townsend Street Suite 520
18 San Francisoo, CA 94107
19 Facsimile number:
20
(415) 856-0306
21 Executed on November 9, 2009, at Monterey, California. I declare under penalty
of perjury under the laW5 of the State of California that the above is true and correct.
22
23
24
25
28
27
28
MILLER V. CITY Of CARMEI.-!YTHE-SEA
CASE No. M99513
2
CERTIFICATE OF S E ~ V I C E
0361
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3
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5
6
7
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9
lO
UJ
11

"'"
eoo
\f
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0 .
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rg

14


Ulan
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::;
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0
Richard C. Bolanos, Bar No. 111343
rbolanos@lcwlegal.com
Suzanne Solomon, Bar No. 169005
ssolomon@Icw1egal.com
GraceY. Chan, Bar No. 240899
gchan@lcwlegal.com
LIEBERT CASSIDY WHITMORE
A Professional Law Corporation
153 Townsend Street, Suite 520
San Francisco, CA 94107
Telephone: (415) 512-3000
Facsimile: (415) 856-0306
Attorneys for Defendant
CITY OF CARMEL-BY-THE-SEA
0
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
JANE KINGSLEY MILLER,
Plaintiff,
V.
CITY OF CARMEL-BY-THE-SEA and
DOES I through I 00, inclusive,
Defendant.
CaseNo. M99513
ASSIGNED TO JUDGE LARRY E. HAYES,
DEPT. 4, SALINAS DIVISION
CITY OF CARMEL-BY-THE-SEA'S
SUPPLEMENTAL BRIEF ON ISSUE OF
LACHES IN SUPPORT OF CITY'S
MOTION TO DISQUALIFY PLAINTIFF'S
COUNSEL
Date:
Time:
Dept:
December 18,2009
8:45a.m.
4
[Exempt from filing fees pursuant to Cal.
Gov. Code 6103]
CITY'S SUPP. BRIEF ON LACHES ISSUE IN SUPP. OF MOT. TO DISQUALIFY PLAINTIFF'S COUNSEL
0362
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UJ
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lSs>J

t=
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I <l)m
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Q _.;;;

;g
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o:: e r cu
WQ.I"l(l)
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I.
II.
III.
IV.
v.
VI.
0 0
TABLE OF CONTENTS
Page
INTRODUCTION .............................................................................................................. 1
SUMMARY OF FACTS .................................................................................................... 2
FOR THE DOCTRINE OF LACHES TO PREVENT DISQUALIFICATION, AN
EXTREMELY LONG AND UNREASONABLE DELAY MUST CAUSE
EXTREME PREJUDICE .................................................................................................... 4
A. Despite a Split in Authority, This Court May Address the Laches Issue ............... 4
B. Laches Does Not Apply Unless the City Inexcusably Delayed Seeking
Disqualification for An Extreme Amount of Time, Resulting in Extreme
Prejudice to Plaintiff ............................................................................................... 5
THE "DELAY" WAS MINIMAL AND JUSTIFIED, AND DID NOT CAUSE
EXTREME PREJUDICE .................................................................................................... 7
A. The Timing of the Motion is Reasonable and Any "Delay" Was Not
Extreme ................................................................................................................... 7
B. Mr. Stamp's Failure to Disclose the Conflict and Seek the City's Consent
Was the True Cause of Any "Delay" ...................................................................... 9
C. The Timing of This Motion Has Not Caused Extreme Prejudice to Plaintiff ....... 10
MR. STAMP'S REPRESENTATION OF FOUR OTHER CITY EMPLOYEES
DOES NOT SUPPORT PLAINTIFF'S LACHES ARGUMENT.. .................................. 12
CONCLUSION ................................................................................................................. 14
- i -
CITY'S SUPP. BRIEF ON LACHES ISSUE IN SUPP. OF MOT. TO DISQUALIFY PLAJNTIFF'S COUNSEL
0363
0
0
1 TABLE OF AUTHORITIES
2
3

4
5
Complex Asbestos Litigation/Widger v. Owens-Corning Fiberglas Corp.
(1991) 232 CaLApp.3d 572 .......................................................................................................... 5
6
Earl Scheib, Inc. v. Superior Court
(1967) 253 Cai.App.2d 703 .......................................................................................................... 4
7
8
Gong v. RFG Oil, Inc.
(2008) 166 Cai.App.4th 209 ........................................................................................................ 5
9
Hilleby v. FMC Corp.
(N.D. Cal. 1992) 1992 WL 455436, *3 ........................................................................................ 9
10
Image Technical Services, Inc. v. Eastman Kodak Co.
w
11
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12
-

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13



14

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(N.D. Cal. 1993) 820 F. Supp. 1212 ............................................................................................ 9
Metro-Goldwyn-Mayer, Inc. v. Tracinda Corporation
(1995) 36 Cal.App.4th 1832 ...................................................................................................... 13
People ex rei. Dept. of Corps. v. SpeeDee Oil Change Sys., Inc.,
(1999) 20 Cal. 4th I 135 ............................................................................................................... 6
River West v. Nickel
(1987) 188 Cal.App.3d 1297... ....................................................................................... 4, 5, 6, 10
16
Santa Teresa Citizen Advocacy Group v. City of San Jose
17
(2003) 114 Cal.App.4th 689 ........................................................................................................ 6
18
State Farm Mut. Auto. Ins. Co. v. Fed. Ins. Co.
(1999) 72 CaLApp.4th 1422 ........................................................................................ 5, 9, 10, II
19
Western Continental Operating Co. v. Natural Gas Co.
20
(1989) 212 Cal.App.3d 752 ............................................................................................ 5, 6, 7, 11
21
Zador v. Kwan
(1995) 31 Cal.App.4th 1285 .................................................................................................. 6, 10
22
23
Rules
24
California Rule of Professional Conduct 3-3IO(A) ......................................................................... 2
25
I! !5594 CA200014
26
27
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I. INTRODUCTION
Now that the City has met the "substantial relationship" test, the Court has discretion to
determine whether the City unreasonably delayed in seeking disqualification, and whether any
such delay caused prejudice to Plaintiff. To defeat this motion on laches grounds, California law
requires that Plaintiff establish that "extreme prejudice" resulted from an extreme and
unreasonable delay in the request for disqualification. Plaintiff cannot do so.
Because of Mr. Stamp's failure to seek informed consent from the City, it was not until
December 2008 that the City had any inkling that Mr. Stamp had a conflict of interest. As of
December 2008, the City's outside investigator had just completed her witness interviews
regarding the allegations Plaintiff had presented to the City in May 2008. Plaintiff had refused to
be interviewed. At that point the City's only option to assert a conflict of interest would have
been to sue Plaintiff and seek an injunction prohibiting Mr. Stamp from representing Plaintiff.
That would have been absurd, however, since no lawsuit had been filed, the investigation was
concluding, Plaintiff was not participating in it and was simply out on stress leave. The
investigation was concluded in January 2009 and that was the end of any matters involving
Plaintiff. Then, she filed this lawsuit in June 2009. At that point, the City investigated the
conflict issue and filed this motion less than three months later. Therefore, any "delay" was not
extreme, and was not unreasonable.
As for prejudice, the only prejudice Plaintiff has cited is what happens when any motion
to disqualify is granted, regardless ofthe timing: Plaintiff does not get her first choice of counsel
and has to pay new counsel to learn the case. As a matter of law, this does not constitute extreme
prejudice. Mr. Stamp's argument that his investment of200 hours on the equivalent
ofless than five 40-hour weeks-is not persuasive, because he does not explain how the work is
unusable or otherwise causes extreme prejudice. This litigation is just a few months old, and the
parties have exchanged written discovery and taken only one 2-hour deposition, so the bulk of the
work on the case is still ahead of us. Additionally, Mr. Stamp has not identified what portion of
his investment on the case was performed before December 2008, the earliest date the City had
any inkling of a potential conflict. Events occurring prior to that cannot be construed to have
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caused any prejudice, since the City had no notice of the conflict and could not have been
expected to assert it before then.
Laches therefore does not apply here, and the City respectfully requests that Mr. Stamp be
disqualified.
II. SUMMARYOFFACTS
On May 20, 2008, Mr. Stamp wrote a letter to the City of Carmel on behalf of Jane Miller,
alleging that City Administrator Rich Guillen had harassed and discriminated against Plaintiff.
(Stamp Dec!., 1[54; Ex. B to Stamp Dee!.) The purpose of the letter was to inform the City of
Plaintiff's claims on behalf of Plaintiff. The letter was not intended as a vehicle for Mr. Stamp to
advise his former client, the City, that he was now taking on a matter adverse to the City, or to
inform the City of the foreseeable consequences. The May 20, 2008 Jetter was the first notice
anyone had in the City that Mr. Stamp was representing Plaintiff. Mr. Stamp has never provided
any disclosures, written or otherwise, to the City of Carmel regarding the "actual and reasonably
foreseeable adverse consequences" that his representation ofPlaintiffwould have on the City as
Rule of Professional Conduct 3-31 O(A)(l) requires. (Burch Dec I., 1[12.) Nor did the City ever
consent, in writing or otherwise, to Mr. Stamp's representation of Plaintiff.
As of May 2008, there was no employee in the City with first-hand knowledge of Mr.
Stamp's prior representation of the City in personnel matters. Although Plaintiff herself had been
involved in some of those matters (Miller Decl., 1[8.), she went out on leave on May 21,2008 and
has not yet returned. (Complaint 1[63.) All the other City employees who knew what personnel
matters Mr. Stamp handled for the City had been gone for years as of May 2008. Doug Schmitz,
the former City Administrator, who had "hired Michael Stamp for legal advice on personnel and
employment matters," left the City in 1992. (Schmitz Dec!., 'IMJI, 2, 7.) Jere Kersnar, the next
City Administrator, left in 2000, and has even submitted a declaration in opposition to this
motion, stating that "No one who played any material or significant role in" personnel matters
that arose during Kersnar's tenure "is now employed by the City, or has been employed by the
City in the past several years, except Jane Miller." (Kersnar Dec!., 'IMJl, 'I 6.) Jerry Pullen,
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Cannel's former Personnel Officer, worked with Mr. Stamp on several personnel matters from
1984to 1998, when Pullen retired. (Pullen Decl., 1-78.)
In late May 2008, the City hired Liebert Cassidy Whitmore for advice regarding the
allegations in Mr. Stamp's May 20, 2008 letter. (Declaration of Richard C. Bolanos, 'lj2.) Not
surprisingly, no one at the City informed Liebert Cassidy that Mr. Stamp had previously
represented the City in personnel matters. (Bolanos Decl., ,14.) Nor did Mr. Stamp disclose that
to Liebert Cassidy.
In the summer of 2008, the City hired an outside investigator to investigate Plaintiff's
allegations against Mr. Guillen. (Bolanos Decl., 'lj3.) Plaintiff refused to be interviewed by the
outside investigator. She did so via various letters exchanged between Mr. Stamp and Liebert
Cassidy, beginning in August2008. (Stamp Decl., ,l'l!65-67; Exs. I, J and K to Stamp Decl.)
On December 4, 2008, the outside investigator provided an update to Liebert Cassidy
regarding the investigation. (Bolanos Decl., 'lj4.) The investigator said that she had completed
all of her investigatory interviews, except for Plaintiff, who continued to refuse to be interviewed.
/d. The investigator told Liebert Cassidy Whitmore that Rich Guillen had stated, during the
investigator's interview with him, that Michael Stamp had represented the City, prior to Guillen's
tenure, on personnel matters. /d. This was the first notice Liebert Cassidy had of Mr. Stamp's
prior representation. (Bolanos Dec!., 'lj4.) Mr. Guillen had not been involved in decisions
regarding Plaintiff's allegations, since he was the target of the allegations. (Bolanos Dec!., 'lj4;
Supplemental Declaration of Rich Guillen, 'l!4.) Mr. Guillen had not told anyone at Liebert
Cassidy that Mr. Stamp had previously represented the City in personnel matters. Nor did Mr.
Guillen know any details about the prior representations. (Supp. Guillen Dec!., 'lj2.)
On December 18, 2008, Liebert Cassidy wrote to Mr. Stamp informing him that the
outside investigator would complete the investigation without interviewing Plaintiff because
Plaintiff had refused to be interviewed. (Bolanos Dec!., 15; Ex. 1 to Bolanos Decl.) The
investigation was completed on January 16,2009. (Bolanos Decl., 'l!6.) Liebert Cassidy
informed Plaintiff of the results of the investigation by sending a Notice of Completion to Mr.
Stamp on February 9, 2009. (Bolanos Dec!., ,16; Ex. 2 to Bolanos Decl.) The City of Cannel
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therefore considered the matter of Plaintiff's allegations against the City Administrator to be
closed as of February 9, 2009. (Bolanos Dec!., 1[ 7.)
This lawsuit was filed and served on the City on June 17, 2009. In late June and early
July 2009, the parties exchanged written discovery. (Supplemental Solomon Dec!., ,12.) Plaintiff
has taken one 2-hour deposition of a witness who was about to go overseas and therefore had to
be deposed before he became unavailable. (Supp. Solomon Dec!., 1[ 3.) In late August 2009, the
parties responded to each other's written discovery, but the parties did not provide documents
responsive to each other's requests for production of documents. (Supp. Solomon Dec!., 1[ 2.)
The motion to disqualify was filed on September 1, 2009. On September 25, 2009, the parties
agreed to stay discovery until the disqualification motion is resolved. Id.
III. FOR TilE DOCTRINE OF LACHES TO PREVENT DISQUALIFICATION, AN
EXTREMELY LONG AND UNREASONABLE DELAY MUST CAUSE EXTREME
PREJUDICE
A. Despite a Split in Authority, This Court May Address the Laches Issue
Now that the City has mel the "substantial relationship" test, the Court has discretion to
determine whether the City unreasonably delayed in seeking disqualification, and whether any
such delay caused extreme prejudice to Plaintiff. River West v. Nickel (1987) 188 Cal.App.3d
1297, 1309, a case from the Fifth Appellate District. During the October 23, 2009, hearing on
this motion, this Court noted a split in California authority on this issue. See, e.g., Earl Scheib,
Inc. v. Superior Court (1967) 253 Cal.App.2d 703, 706, holding that if the "substantial
relationship" test is met, a court may not inquire into the timeliness of the motion to disqualify.
Regardless ofthat decision, the City believes that the weight of California authorities provides
that a court may conduct a laches analysis. The River West court made clear that while a court
may not balance the former client's and current client's parties interests in determining whether
the substantial relationship test is met, once the court determines that a substantial relationship
exists, the court may inquire into whether the timing of the motion unreasonably causes extreme
prejudice to the current client. 188 Cal.App.3d at 1308.
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B. Lacbes Does Not Apply Unless tbe City Inexcusably Delayed Seeking
Disqualification for An Extreme Amount of Time, Resulting in Extreme
Prejudice to Plaintiff
Under River West, if Plaintiff makes a prima facie showing that the City inexcusably
delayed in bringing this motion and that Plaintiff was prejudiced as a result, the City must then
provide evidence justifying the delay. The City may do so by showing how long it knew of the
conflict, whether it was represented by counsel during that time, and whether an earlier motion
would have been inappropriate or futile, and why. River West, 188 Cal.App.3d at 1309. The test
provides a "narrow exception" to disqualification. Id. The mere fact that a delay occurred is not
enough to deny disqualification. Both the delay and the resulting prejudice must be extreme:
"[M]ere delay" in making a disqualification motion is not dispositive.
The delay must be extreme in terms of time and consequence.
188 Cal.App.3d at 1311. River West makes clear that the doctrine of laches will justify denial of
a disqualification motion only upon a finding that the both length of the delay and the
"consequence" of it, i.e., the prejudice, are extreme.
The First Appellate District adopted the River West rule, holding that in order for delay to
cause denial of disqualification, "the delay and the ensuing prejudice must be extreme."
Western Continental Operating Ca. v. Natural Gas Co. (1989) 212 Cal.App.3d 752,763-765.
That remains the rule in the First District. E.g., Complex Asbestos Litigation/Widger v. Owens-
Corning Fiberglas Corp. (1991) 232 Cal.App.3d 572,599 (delay did not justify denying
disqualification because challenged counsel "failed to show that the delay caused any prejudice,
must less extreme prejudice;' citing River West and Western Continental). The Fifth District
also requires extreme prejudice. E.g., State Farm Mut. Auto. Ins. Co. v. Fed. Ins. Co. (1999) 72
Cal.App.4th 1422, 1435 (though disqualification would hamper the progress oflawsuit and
require additional expense to engage new counsel, "these effects do not prove extreme
prejudice"). The rule is the same in the Fourth District. E.g .. Gang v. RFG Oil, Inc. (2008) 166
Cal.App.4th 209, 422 (though disqualification would cause loss of challenged counsel's work
product, challenged counsel had not established that loss "would create extreme prejudice,"
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citing Western Continental). Finally, the Sixth District also requires extreme prejudice. Zador v.
Kwan (1995) 31 Cai.App.4th 1285, 1302 ("Delay will not necessarily result in the denial of a
disqualification motion; the delay and the ensuing prejudice must be extreme," citing Western
Continental).
California authorities resoundingly state that the prejudice must be "extreme." Although
another Sixth District case held that laches applied because disqualification of counsel "on the
eve oftrial would have resulted in substantial prejudice," there is no indication in the opinion that
the court considered "substantial prejudice" to be anything other than a s)inonym for "extreme
prejudice," which the same court previously stated was required. Santa Teresa Citizen Advocacy
Group v. City of San Jose (2003) 114 Cai.App.4th 689,712. Moreover, the prejudice in Santa
Teresa was extreme, because disqualification was sought a mere 10 days before trial. 114
Cai.App.4th at 710.
The California Supreme Court has cited the River West test with approval, albeit in dicta.
In People ex rei. Dept. of Corps. v. SpeeDee Oil Change Sys., Inc., (1999) 20 Cal. 4th 1135, 1145,
the Supreme Court noted that although laches can apply to disqualification motions, it did not
apply to that case. Though the SpeeDee Oil opinion labels the required level of prejudice as
"significant prejudice," again there is no indication that the label is intended to mean something
other than the "extreme" "consequences" that River West opinion states are required:
This case is not one where, despite knowing the pertinent facts, a party
unreasonably delayed seeking disqualification and so caused its opponent
significant prejudice. (See River West, Inc. v. Nickel, supra, 188 Cai.App.3d at pp.
1311-1313.) There was no basis for concern here that one party, by belatedly
moving to disqualify opposing counsel, was attempting to disrupt a case at a critical
juncture. Similarly, this case was not one where a party tried to increase an
opponent's litigation burdens by seeking disqualification only after the challenged
counsel performed a significant amount of work. Consequently, we do not
comment on the relative weight these concerns might deserve in deciding a
disqualification motion based on a conflict of interest.
20 CaL 4th at 1145, fu 2.
These authorities demonstrate that in order for Plaintiff to defeat this motion on laches
grounds, she must establish that an extreme and unreasonable delay in bringing the motion caused
her extreme prejudice.
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IV. THE "DELAY" WAS MINIMAL AND JUSTIFIED, AND DID NOT CAUSE
EXTREME PREJUDICE
A. The Timing of the Motion is Reasonable and Any "Delay" Was Not Extreme
Mr. Stamp never made the required disclosure to the City of the conflict, and the City
employees he worked with on personnel matters were gone as of May 2008. For that reason, the
first inkling anyone in the City had of a conflict was in December 2008, when the outside
investigator told Liebert Cassidy that Mr. Guillen had mentioned during the investigatory
interview that Mr. Stamp had represented the City. (Bolanos Dec!., ,J4.) Therefore, the starting
point for any claim of delay is December 2008.
The motion to disqualify was filed on September I, 2009, nine months later. Nine months
does not constitute an "extreme delay." Western Continental Operating Co. v. Natural Gas Co.
(1989) 212 Cal.App.3d 752, 763-765. In that case, laches did not prevent disqualification where
the motion was brought 13 months after the litigation was filed. There, the disqualified attorney
argued that the former client had knowledge of the conflict even during the course of negotiations
occurring before the litigation. 212 Cal.App.3d at 764. But the former client established that
while it knew of some of the facts, the issue of the conflicting prior representation was not
appreciated until later, when litigation counsel was reviewing documents in connection with
discovery requests. !d. Based on that evidence, the court found that the 13-month time period that
elapsed was neither extreme nor umeasonable, given the reasons for the delay and the fact that the
case was still in the early stages of litigation. !d.
Here, the City was justified in not taking steps, in December 2008, to determine whether a
conflict existed and if so, object to Mr. Stamp's representation. First, it is clear that asking Mr.
Stamp or former employees about a conflict would have been futile. Mr. Stamp claims not to
remember advising the City on its sexual harassment policy, and continues to assert that the other
personnel matters he handled-including a sexual harassment and retaliation complaint that
involved a City Administrator--do not meet the substantial relationship test. Moreover, the former
employees who provided declarations supporting Plaintiff's opposition to this motion make clear
that they either do not remember those matters in any detail, or that they are intentionally
7
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misrepresenting them. For example, the City's former personnel office, Jerry Pullen, declares
that none of the matters Mr. Stamp handled for the City are similar in subject matter to the claims
in this case. (Pullen DecL 119.) But documents that this Court reviewed in camera show that Mr.
Stamp represented the City in handling an ugly sexual harassment complaint made against Jerry
Pullen! (In Camera Review, Documents 18-21; Ex. I to the Supp. Burch DecL filed herewith.)
Obviously, any inquiry the City could have made of Mr. Stamp or former employees would have
been met with incomplete information and incorrect assertions. Anything short of an exhaustive
search of the City's own documents would have been futile.
More importantly, because there was no litigation and no adversarial proceeding, it would
have been absurd and futile for the City to seek an injunction against Mr. Stamp's representation
of Plaintiff in December 2008. Plaintiff had made a discrimination complaint in May 2008, had
gone out on stress leave, and had refused to be interviewed. By December 2008, when the City
learned of Mr. Guillen's statements about Mr. Stamp's prior representation, the investigator had
already concluded her interviews and the only matter remaining was whether Plaintiff would
finally agree to an interview. At that point, it would have been ridiculous for the City to file a
lawsuit against Plaintiff-the City's employee who was already out on a stress leave--seeking an
injunction prohibiting her from being represented by Mr. Stamp .. The City simply wanted to
complete its investigation into her allegations. She made it clear she did not want to participate.
Therefore, the investigation was completed without her input in January 2009, and Plaintiff was
informed of the results in February 2009. (Bolanos Dec!., 1M14-7.) Though Mr. Stamp insinuates
that he was doing work on this matter aside from advising Plaintiff not to be interviewed, the City
had no notice of any such work. From the City's perspective, Plaintiffs complaint was resolved
in January 2009, when the investigation report was completed. (Bolanos Dec!. '1!7.)
Once the lawsuit was filed, the City began its search for information regarding the scope
of Mr. Stamp's prior representation. (Supp. Burch Dec!., 1M! 3-6.) Nothing short of that search
would have revealed the true nature of Mr. Stamp's prior representation. The motion to
disqualify was filed at the outset of this lawsuit, less than three months after the complaint was
filed. On these facts, it is clear the City's timing on this motion was not designed to gain an
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unfair advantage in this litigation or derail the case at a critical juncture. Because there is not
even the faintest indication of such tactics, the narrow laches exception does not apply here.
B. Mr. Stamp's .Failure to Disclose tbe Conflict and Seek the City's Consent Was tbe
True Cause of Any "Delay"
Courts routinely refuse to deny disqualification motions on laches grounds where the
challenged counsel fails to disclose the conflict to the moving party. The policy behind these
holdings is that the challenged counsel-and not the former client-has a duty to perform conflict
checks before taking on new matters, a duty that is reflected in the rule against accepting
employment adverse to a former client. See, e.g., State Farm Mut. Auto. Ins. Co. v. Fed. Ins. Co.
(1999) 72 Cai.AppAth 1422, 1435, in which the court declined to penalize the former client for
not seeking disqualification earlier, because the challenged counsel had failed to disclose the
conflict. The court noted, "[l]t is the attorney who is charged with the responsibility of
perfonning conflict checks upon accepting a new client The client is under no such obligation."
!d.
Even in cases where, as here, the former client is aware of some facts indicating that a
conflict may exist, but the challenged attorney fails to provide complete disclosure that would
allow the former client to assess whether to consent or move to disqualifY, courts refuse to deny
disqualification on the grounds of delay. For example, in Image Technical Services, Inc. v.
Eastman Kodak Co. (N.D. CaL 1993} 820 F. Supp. 1212, Kodak was vaguely aware that its
current counsel was participating in a lawsuit adverse to an overseas division of Kodak, but
counsel had not explained to Kodak the details or the reasonably foreseeable consequences. 820
F.Supp. at 1216-1217. The court dismissed counsel's arguments that the motion should be denied
on the grounds of delay, because challenged counsel had failed to make an adequate disclosure of
the conflict. /d. In another federal case applying California law, challenged counsel who had
never notified the former client of the conflict argued that former client was aware of it seven
years before the case at bar and unreasonably delayed in bringing the motion. Hilleby v. FMC
Corp. (N.D. Cal. 1992) 1992 WL 455436, *3. The court disagreed because the evidence of the
former client's alleged prior knowledge was not persuasive, and because challenged counsel had
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never disclosed the conflict or provided the former client with an opportunity to object.
C. The Timing of This Modon Has Not Caused Extreme Prejudice to Plaintiff
The mere facts that disqualification will affect the progress of the lawsuit, or deprive a
party of "knowledgeable, experienced counsel," and cause a party to incur the expense of
education new counsel do not constitute extreme prejudice. State Farm Mut. Auto. Ins. Co. v.
Fed. Ins. Co. (1999) 72 CaLApp.4th 1422, 1435.
Courts generally find "extreme prejudice" results from a delay in seeking disqualification
where a party appears to have made a tactical decision about the timing of the motion in order to
gain an advantage in litigation and! or the motion is made on the eve of triaL For example, in
River West, the former client was well aware of all of the facts creating the conflict within the
first five months of the lawsuit, but litigated the matter for three and a half more years. It was not
until the opposing party filed a motion for summary judgment that the former client finally moved
for disqualification. 188 CaLApp.3d at 1312. The court found that the delay was extreme,
because the former client, with knowledge of all of the relevant facts about the conflict, waited
until almost four years after the lawsuit was filed to move to disqualify. 188 Cai.App.3d at 1310-
1313. The court found that there was nothing that would have prevented the filing of the motion
or made the motion futile. Id. The court found that the resulting prejudice to the current client
was extreme, because during the almost four years of litigation, the current client's counsel had
spent 3,000 hours on the litigation at a cost of$387,000 (in 1980s dollars). 188 CaLApp.3d at
1310-1313.
In Zador v. Kwan ( 1995) 31 Cai.App.4th 1285, 1302, the appellate court noted, in
overturning the granting of a disqualification motion, that the former client had known of the
conflict three years before seeking disqualification, and had threatened to seek disqualification on
many occasions in order to obtain concessions, and only finally made the motions when such
threats stopped working. 31 Cai.App.4th at 1302. The basis for reversal in Zador was that the
former client had explicitly and repeatedly consented in writing to the conflict after the
challenged counsel had made the required disclosure. 31 Cai.App.4th at 1289-1290.
In cases such as this one, where there is no indication that any delay was tactical, and
10
CITY'S SUPP. BRIEF ON LACHES ISSUE IN SUPP. OF MOT. TO DISQUALIFY PLAINTIFF'S COUNSEL
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disqualification is sought early in the litigation, courts find that extreme prejudice did not result
from the delay. E.g., Western Continental Operating Co. v. Natural Gas Co. (1989) 212
Cai.App.3d 752, 763-765.
Applying these principles to this case, Plaintiff cannot establish extreme prejudice. First,
the timing of the motion is in large part a function of Mr. Stamp's failure to disclose the conflict.
As soon as the lawsuit was filed, the City took steps to ascertain the full extent of Mr. Stamp's
prior representation of the City. The motion was made as soon as possible after the City figured
out the extent of Mr. Stamp's prior representation, and less than three months after this lawsuit
was filed. The motion was not intended to, nor did it, disrupt the case at a critical juncture.
Plaintiff argues that she is prejudiced by virtue of the "more than 200 attorney hours and
over 240 staff hours" that have been spent over a 15-month period on this matter. No further
detail is provided. (Stamp Dec!.,, 79.) That vague assertion does not explain how extreme
prejudice results. No explanation is provided about how Mr. Stamp's aggregate of approximately
5 weeks of work would be wasted, or not allowed to be used by Plaintiffs subsequent counsel.
The parties have exchanged written discovery, and the complaint in this action is very detailed, so
presumably a large amount of Mr. Stamp's work still retains value because it is reflected in
pleadings and discovery. Only one 2-hour deposition has occurred. (Supp. Solomon Dec!., '\13.)
The case is a only few months old, and no trial date has been set. On these facts, it is difficult to
glean what prejudice exists at all, except for the fact that a new attorney would need to get up to
speed, which as a matter of law is not extreme prejudice. State Farm, supra.
Moreover, the prejudice at issue must have been caused by the timing of the motion.
Since Mr. Stamp failed to disclose the conflict and that City's counsel had no inkling of it prior to
December 2008, to the extent his pre-December 2008 work is made less useful because of
disqualification, such prejudice was caused not by the City but by Mr. Stamp's failure to seek
informed consent Mr. Stamp's declaration regarding the amount of time he has spent on this
matter does not specify how much of that work was done prior to December 2008. It is obvious
just from reading the exhibits to the Stamp declaration that a significant portion of his work on
this matter was performed before December 2008. In any event, he bears the burden to explain
II
CITY'S SUPP. BR1EF ON LACHES ISSUE IN SUPP. OF MOT. TO DISQUALIFY PLAINTIFF'S COUNSEL
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what work was done, and when, and why the timing of the motion somehow makes the work so
unusable as to constitute extreme prejudice.
V. MR. STAMP'S REPRESENTATION OF FOUR OTHER CITY EMPLOYEES
DOES NOT SUPPORT PLAINTIFF'S LACHES ARGUMENT
Plaintiff argues that Mr. Stamp's representation of four employees of the City in 2003,
2006 and 2008 precludes the City from now objecting to Mr. Stamp's representation of Jane
Miller. The argument misses the mark for several reasons. First, Plaintiff has not established that
Mr. Stamp's prior representation of the four employees regarding their retirement from the City
bears a substantial relationship to any of the personnel matters on which Mr. Stamp had
previously advised the City. Plaintiff's opposition does not even identify any previous personnel
matter Mr. Stamp handled for the City that purportedly is substantially related to his
representation of the four retiring employees, never mind explaining how the matters are related.
Instead of providing such an explanation, Mr. Stamp insinuates that he was representing
the employees in pursuing discrimination claims. That is simply not true. Those employees
made no claims whatsoever, and simply wanted to retire early to take advantage of the City's
golden handshake. (Declaration of Rich 4, 7, 10 and 14.) 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!., 1Mf4-16.)
The employees never sued or filed DFEH charges; they simply wanted to retire. (Guillen Dec!.,,
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 of99 years for
the City and were entitled to receive that compensation. (Guillen 4-5, 7-8, 1 0-15.) The
Court should carefully examine Mr. Stamp's October 8, 2009 declaration, paragraphs 31-49,
which contains no assertion that Mr. Stamp was pursuing discrimination claims on these
employees' behalf_
Even if Plaintiff could establish that Mr. Stamp's representation of the four retiring City
employees was substantially related to some prior matter he handled for the City, that does not
12
CITY'S SUPP, BRIEF ON LACHES ISSUE IN SUPP. OF MOT. TO DISQUALIFY PLAINTIFF'S COUNSEL
0376
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end the matter. Mr. Stamp never disclosed the conflict and the City never consented to it. Mr.
Guillen did not realize that Mr. Stamp's prior representation of the City might affect his ability to
subsequently represent City employees, so he did not seek legal advice about it. (Supp. Guillen
Decl., ,M12-3.)
Finally, Mr. Stamp's representation of the other employees was entirely separate from this
lawsuit. The issue of implied waiver must be addressed on a case by case basis. A former client
may decide--after informed disclosure by its former counsel, which did not occur here--to waive a
conflict for one matter but not the other. A client's waiver of a conflict in one matter does not
operate as a free pass for the client's former attorney to thereafter take on any and all adverse
representations. Accordingly, Plaintiff may not argue that the City should have "disqualified"
Mr. Stamp six years prior to this litigation and 5 years before Plaintiff made her discrimination
complaint.
Other courts addressing this type of implied waiver claim have found it unpersuasive. For
example, in Metro-Goldwyn-Mayer, Inc. v. Tracinda Corporation (1995) 36 Cal.App.4th 1832,
PlaintiffMGM moved to disqualifY the law firm representing Defendant Tracinda on the grounds
that the law firm was concurrently representing MGM in another matter and had previously
represented MGM in other matters meeting the substantial relationship test. The law firm argued
that MGM had impliedly waived the conflict in the instant matter by not objecting to the firm's
representation of other parties adverse to MGM in an earlier bankruptcy proceeding. The
appellate court rejected that argument because the earlier matters were separate and more than 2
years in the past. 36 Cal.App.4th 1846.
II
II
II
II
II
II
II
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CITY'S SUPP. BRJEF ON LACHES ISSUE IN SUPP. OF MOT. TO DISQUALIFY PLAINTIFF'S COUNSEL
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VI. CONCLUSION
For the foregoing reasons, the City respectfully requests that Mr. Stamp and the Law
Office of Michael W. Stamp be disqualified from representing Plaintiff in this action.
Dated: November 1 7, 2009
LIEBERT CASSIDY WHITMORE

on
Attorneys for Defendant
CITY OF CARMEL-BY-THE-SEA
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PROOF OF SERVICE
I, the undersigned, 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 the date set forth below, I served the within:
CITY OF CARMEL-BY-THE-SEA'S SUPPLEMENTAL BRIEF ON ISSUE OF LACHES
IN SUPPORT OF CITY'S MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL
on the following interested party(s) in this action:
Michael W. Stamp
Law Offices of Michael W. Stamp
479 Pacific Street, Suite One
Monterey, CA 93940
(831) 373.0242 FAX
VIA FACSIMILE CCP 1013(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 transmission(s) was reported completed
without error.
I declare under penalty ofpeljury that the foregoing is true and correct and of my personal
knowledge.
Executed at San Francisco, California on November 17, 2009.
f'
111593 I CA200-014
- I - PROOF OF SERVICE
prpro
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0
Richard C. Bolanos, Bar No. 111343
rbolanos@lcwlegal.com
Suzanne Solomon, Bar No. 169005
ssolomon@lcwlegal.com
GraceY. Chan, Bar No. 240899
gchan@lcwlegal.com
LIEBERT CASSIDY WHITMORE
A Professional Law Corporation
153 Townsend Street, Suite 520
SanFrancisco,CA 94107
Telephone: (415) 512-3000
Facsimile: (415) 856-0306
Attorneys for Defendant
CITY OF CARMEL-BY-THE-SEA
0
SUPERIOR COURT OF TilE STATE OF CALIFORNIA
COUNTY OF MONTEREY
MONTEREY DIVISION
JANE KINGSLEY MILLER,
Plaintiff,
V.
CITY OF CARMEL-BY-THE-SEA and
DOES 1 through 100, inclusive,
Defendant.
Case No. M99513
ASSIGNED TO JUDGE LARRY E. HAYES.
DEPT. 4, SAUNAS DIVISION
CITY'S REPLY TO PLAINTIFF'S
SUPPLEMENTAL OPPOSITION ON
ISSUE OF SUBSTANTIAL
RELATIONSHIP TEST REGARDING
CITY'S MOTION TO DISQUALIFY
PLAINTIFF'S COUNSEL
Date:
Time:
Dept:
December 18, 2009
8:45a.m.
4
[Exempt from filing fees pursuant to Cal.
Gov. Code 6103)
I. INTRODUCTION
The City hereby submits this short reply brief responding to Plaintiff's November 9, 2009
brief on the issue of whether the City has met the "substantial relationship" test.
CITY'S REPLY TO PLTF'S SUPP. OPPO. ON SUBSTANTIAL RELATIONSHIP TEST
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II. MR. STAMP NOT ONLY ADVISED ON THE SEXUAL HARASSMENT POLICY
ITSELF IN 1991, BUT ADVISED THE CITY REGARDING A SEXUAL
HARASSMENT/RETALIATION COMPLAINT MADE IN 1992
Plaintiff admits that Mr. Stamp provided advice to the City regarding the City's sexual
harassment policy in 1991, as indicated in the October 28, 1991 letter that Mr. Stamp wrote to the
City containing his hand-written comments on the policy. (Documents Bates-Stamped In Camera
Review 1-17, which this Court reviewed on October 28, 2009). Plaintiff simply asserts that
"none of the issues raised in the letter is material in this case." That is not true. This case is a
sexual harassment case and Mr. Stamp advised on the City's sexual harassment policy. The
policy is at issue in this lawsuit, and therefore, the substantial relationship test is met, under even
the strictest interpretation of the test.
Next, Plaintiff argues that the letter simply constitutes peripheral involvement by Mr.
Stamp for a limited purpose related solely to a legal question. Even if that were true, it would not
defeat the substantial relationship test here because the policy he advised on is the entire basis for
the lawsuit he now brings against the City. Because the policy is so central, the fact that he
provided advice about the policy in the abstract means his prior work is substantially related to
this matter.
But it is not true that Mr. Stamp only provided abstract advice about policy wording as
reflected in the 1991 letter. Mr. Stamp advised the City, in 1992, about responding to an actual
sexual harassment claim that also contained retaliation allegations against the then-City
Administrator (not Rich Guillen). This is reflected in documents Bates Stamped In Camera
Review 18-21, which this Court reviewed on October 28,2009. Moreover, documents that the
City located on November 12, 2009-completely by accident-show that Mr. Stamp advised the
City on what steps to take in the face the sexual harassment claim and a related retaliation claim
against the then-City Administrator. These documents are attached as Exhibit 1 to the
Supplemental Declaration of Heidi Burch. (Supp. Bureh Dec!., 'IJ2.) The City provided Mr.
Stamp with a eopyofthese documents on November 13,2009. (Supp. Solomon Dec!., 'IJ4.)
The following are therefore beyond dispute: In October 1991, Mr. Stamp provided the
City with detailed legal advice about how its sexual harassment policy should be changed, and
.L
CITY'S REPLY TO PLTF'S SUPP. OPPO. ON SUBSTANTIAL RELATIONSHIP TEST
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provided advice regarding effective investigation procedures. (In Camera Review 1-17.) In
1992, the City sent Mr. Stamp a copy of a sexual harassment complaint that a City employee
made against two City employees and a retaliation claim against the then-City Administrator. (In
Camera Review 18-21.) Mr. Stamp then provided the City with advice regarding how to deal
with the complaint and the allegations of retaliation. This is demonstrated by the documents
attached as Exhibit I to the Supplement Burch Declaration.
On these facts, Plaintiff's arguments that the "substantial relationship" test is not met are
not persuasive. Mr. Stamp advised the City about the policy itself, and a year later advised the
City about responding to specific sexual harassment allegations as well as retaliation allegations
against a City Administrator. This case involves sexual harassment and retaliation claims against
a City Administrator. A substantial relationship exists, and therefore, Mr. Stamp was obligated
under the Rules of Professional Conduct to seek the City's informed consent before representing
Plaintiff. He did not do so, and he should be disqualified from continuing to represent Plaintiff in
this action.
Dated: November 16, 2009
CITY'S REPLY TO PL TF'S SUPP. OPPO. ON SUBSTANTIAL RELATIONSHIP TEST
0382
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PROOF OF SERVICE
I, the undersigned, declare:
1 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 the date set forth below, I served the within:
CITY'S REPLY BRIEF RESPONDING TO PLAINTIFF'S SUPPLEMENTAL BRIEF ON
ISSUE OF SUBSTANTIAL RELATIONSHIP TEST REGARDING CITY'S MOTION TO
DISQUALIFY PLAINTIFF'S COUNSEL
on the following interested party(s) in this action:
Michael W. Stamp
Law Offices of Michael W. Stamp
479 Pacific Street, Suite One
Monterey, CA 93940
(831) 373.0242 FAX
VIA CCP 1013(e); CRC 2008:
By arranging for facsimile transmission from facsimile number (415) 856..{)306 to the above listed
facsimile number(s) prior to 5:00p.m. The facsimile transmission(<) was reported completed
without error.
I declare under penalty of peljury that the foregoing is true and correct and of my personal
knowledge.
Executed at San Francisco, California on November j} 2009.
PROOF OF SERVICE
-------------------------!
! ll598.1 CA200014
- I -
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Richard C. Bolanos. Bar No. 111343
rbolanos@lcwlegal.com
Suzanne Solomon, Bar No. 169005
ssolomon@lcwlegal .com
LIEBERT CASSIDY WHITMORE
A Professional Law Corporation
153 Townsend Street, Suite 520
San Francisco, CA 94107
Telephone: (415) 512-3000
Facsimile: ( 415) 856-0306
Attorneys for Defendant
CITY OF CARMEL-BY-THE-SEA
0
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
JANE KINGSLEY MILLER,
Plaintiff,
v.
CITY OF CARMEL-BY-THE-SEA and
DOES 1 through I 00, inclusive,
Defendant.
Case No. M995 I 3
ASSIGNED TO JUDGE LARRY E. HAYES,
DEPT 4, SALINAS DIVISION
SUPPLEMENTAL DECLARATION OF
SUZANNE SOLOMON IN SUPPORT OF
CITY'S MOTION TO DISQUALIFY
PLAINTIFF'S COUNSEL
Date: December 18, 2009
Time: 8:45 a.m.
Dept: 4
(Exempt from filing fees pursuant to Cal.
Gov. Code 6103)
I, Suzanne Solomon, hereby declare as follows:
I. I am licensed to practice law before this Court and I am counsel for Defendant
City of Carmel-by-the-Sea ("City") in this action. I have personal knowledge of the facts set
forth in this declaration, and if called as a witness I would and could competently testify thereto.
2. After tiling and serving this action on June 17, 2009, Plaintiff served the City with
form interrogatories and a request for production of documents on June 29, 2009. The City
SUPP. SOLOMON DECL SUPPORTING MOTION ro DISQUAI.IFY PLATNTIFF'S COUNSEL
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responded to those on August 19, 2009. On July 20, 2009, Plaintiff propounded a second set of
interrogatories and a second set of requests for production of documents, to which the City
responded on August 24,2009. On July I, 2009, the City propounded forrn interrogatories,
special interrogatories and a request for production of documents upon Plaintiff, to which she
responded on August 26, 2009. Neither the City nor Plaintiff has produced any documents to
each other in response to each other's requests for production of documents. On September 25,
2009, the parties agreed to stay discovery until the disqualification motion is resolved.
3. Plaintiff deposed a City employee on July 22, 2009. Mr. Stamp informed me that
he was taking the deposition this early in the litigation because he expected the employee to be
going oversees for an extended period of time in the next few months, and therefore he wanted
the testimony before the employee became unavailable. The deposition lasted less than two
hours.
4. On November 13, 2009, l sent Mr. Stamp a copy of the documents that are Exhibit
I to the Supplemental Burch declaration, and inforrned him of my intent to submit the documents
with the City's supplemental briefing regarding the "substantial relationship" test.
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 November I 6, 2009 at San
Francisco, California.
111460.1 CA200-014
- 2-
SOLOMON DECL. SUPPORTING MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL
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PROOF OF SERVICE
I, the undersigned, declare:
I am employed in County of San Franciseo, State of California. I am over the age of
eighteen years and not a party to the within action. My business address is !53 Townsend Street,
Suite 520, San Francisco, California 94107.
On the date set forth below, I served the within:
SUPPLEMENTAL DECLARATION OF SUZANNE SOLOMON IN SUPPORT OF
CITY'S MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL
on the following interested party(s) in this action:
Michael W. Stamp
Law Offices of Michael W. Stamp
479 Pacific Street, Suite One
Monterey, CA 93940
(831) 373.0242 FAX
VIA FACSIMILE- CCP IOJ3(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 transmission(s) was reported completed
without error.
I declare under penalty of peijury that the foregoing is true and correct and of my personal
knowledge.
Executed at San Franciseo, California on November

[AndreaS. Bolnick)
990011 CA200-1ll4
- I - PROOF OF SERVICE
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Richard C. Bolanos, Bar No. 111343
rbolanos@lcwlegal.com
Suzanne Solomon, Bar No. 169005
ssolomon@lcwlegal.com
LIEBERT CASSIDY WHITMORE
A Professional Law Corporation
153 Townsend Street, Suite 520
San Francisco, CA 94107
Telephone: (415) 512-3000
Facsimile: (415) 856-0306
Attorneys for Defendant
CITY OF CARMEL-BY-THE-SEA
0
SUPERIOR COURT OF TilE STATE OF CALIFORNIA
COUNTY OF MONTEREY
JANE KINGSLEY MILLER,
Plaintiff,
v.
CITY OF CARMEL-BY-THE-SEA and
DOES I through I 00, inclusive,
Defendant.
Case No. M99513
ASSIGNED TO JUDGE LARRY E. HAYES.
DEPT. 4, SALINAS DIVISION
SUPPLEMENTAL DECLARATION OF
RICH GUILLEN IN SUPPORT OF CITY'S
MOTION TO DISQUALIFY PLAINTIFF'S
COUNSEL
Date: December 18, 2009
Time: 8:45a.m.
Dept: 4
[Exempt from filing fees pursuant to Cal.
Gov. Code 61031
I, Rich Guillen, do hereby declare the following:
I. I 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
a review of true and correct copies of documents in the City's files with which I am familiar. If
SUPP. GUILLEN DECL. SUPPORTING MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL
0387
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called upon to do so, I would testify competently to such facts and the authenticity of such
documents.
2. Prior to 2003, when I knew that Mr. Stamp was representing City employees Greg
D'Ambrosio and Brian Donoghue regarding their retirement from the City, I also knew that Mr.
Stamp had represented the City of Carmel-by-the-Sea in at least one personnel matter previously.
I did not know any details about the personnel matter in which Mr. Stamp had previously
represented the City. I am not an attorney and have no legal training. I did not know in 2003
that there are rules governing whether and under what circumstances an attorney may take on a
matter in which he represents interests that are adverse to a former client. In any event, I viewed
Mr. Stamp's involvement in the retirements of Mr. D'Ambrosio and Mr. Donoghue as beneficial
for the City, because the employees wanted to retire, and the City had put in place a golden
handshake in order to encourage early retirements, and Mr. Stamp was simply facilitating a result
that was positive for the City. I did not seek legal advice regarding whether Mr. Stamp's
representation of Mr. D'Ambrosio or Mr. Donoghue was appropriate.
3. Similarly, in 2006, when I knew that Mr. Stamp was representing Margaret
Pelikan regarding her retirement from the City, and in 2008, when I knew that Mr. Stamp was
represented City employee Sandy Farrell regarding her retirement from the City, I remained
unaware of rules governing when an attorney may be adverse to a former client. I did not seek
legal advice regarding whether Mr. Stamp's representation of Ms. Pelikan or Ms. Farrell was
appropriate. I viewed Mr. Stamp's involvement as beneficial for the City, because he was
facilitating early retirements that were saving the City in personnel costs.
4. I was not consulted by any employee in the City of Carmel-by-the-Sea, or anyone
at Liebert Cassidy Whitmore, regarding how the City should address allegations that Jane Miller
made in or around May 2008 about me. Prior to the time I received notice of this lawsuit in June
2009, I never informed anyone at Liebert Cassidy Whitmore that Michael Stamp had represented
Ill
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- 2 -
SUPP. GUILLEN DECL. SUPPORTING MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL
0388
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the City of Carmel-by-the-Sea in personnel matters.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is tJ:ue and correct and that this declaration was executed on November !1, 2009 at
Carmel-by-the-sea, California.
-*'ru1Jurn""
c u en
111467.1 CA200-Gl4
-3-
SUPP. GUILLEN DF-CL. SUPPORTING MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL
0389
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PROOF 01<' SERVICE
I, the undersigned, 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 the date set forth below, I served the within:
SUPPLEMENTAL DECLARATION OF RICH GUILLEN IN SUPPORT OF CITY'S
MOTION TO DISQUALIFY PI"AINTIFF'S COUNSEL
on the following interested party(s) in this action:
Michael W. Stamp
Law Offices of Michael W. Stamp
479 Pacific Street, Suite One
Monterey, CA 93940
(831) 373.0242 FAX
VIA FACSIMILE- CCP 1013(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 transmission(s) was reported completed
without error.
I declare under penalty of perjury that the foregoing is true and correct and of my personal
knowledge.
Ft
Executed at San Francisco, California on November Nl, 2009.
99081.1 CA200.014
- 1 - PROOF OF SERVICE
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Richard C. Bolanos, Bar No. 111343
rbolanos@ lcwlegal.com
Suzanne Solomon, Bar No. 169005
ssolomon@ lew legal. com
LIEBERT CASSIDY WHITMORE
A Professional Law Corporation
I 53 Townsend Street, Suite 520
San Francisco, CA 941 07
Telephone: (415) 512-3000
Facsimile: ( 415) 856-0306
Attorneys for Defendant
CITY OF CARMEL- BY-THE-SEA
0
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
JANE KINGSLEY MILLER,
Plaintiff,
v.
CITY OF CARMEL-BY-THE-SEA and
DOES I through 100, inclusive,
Defendant.
Case No. M99513
ASSIGNED TO JUDGE lARRY E. HAYES,
DEPT. 4, SAUNAS DIVIS/ON
DECLARATION OF RICHARD C.
BOLANOS IN SUPPORT OF CITY'S
MOTION TO DISQUALIFY PLAINTIFF'S
COUNSEL
Date: December 18, 2009
Time: 8:45 a.m.
Dept: 4
[Exempt from filing fees pursuant to Cal.
Gov. Code 6103]
I, Richard C. Bolanos, hereby declare as follows:
I. I am licensed to practice law before this Court and I am counsel for Defendant
City of Carmel-by-the-Sea ("City") in this action. I make this declaration based on personal
knowledge and on review of documents kept at Liebert Cassidy Whitmore in the ordinary course
of business, and if called as a witness I would and could competent! y testify thereto.
BOLANOS DECL. SUPPORTING MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL
0391
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2. In late May 2008, the City retained Liebert Cassidy Whitmore for advice regarding
the allegations in a letter that Michael Stamp wrote on behalf of Plaintiff Jane Miller to the City
of Carmel-by-the-Sea dated May 20, 2008. (That letter is attached as Exhibit B to the Declaration
of Michael Stamp in opposition to this motion.)
3. In the summer of 2008, the City hired an outside investigator to investigate the
allegations in Mr. Stamp's May, 20, 2008letter. Plaintiff refused to be interviewed by the outside
investigator, as I learned from several letters that Mr. Stamp sent to me and to another attorney in
my office, beginning in August 2008. (Some of these letters are attached to the Stamp DecL at
Exhibits l, J and K.)
4. In December 2008, the outside investigator provided an update to another attorney
in my office, stating that she had completed all of her investigatory interviews, except for
Plaintiffs. During this same conversation, the outside investigator said that City Administrator
Rich Guillen, during the investigator's interview with him, had mentioned that Michael Stamp
had represented the City of Carntel-by-the-Sea on personnel matlers at some point prior to Mr.
Guillen's tenure with the City. To the best of my knowledge, this was the first notice that anyone
at Liebert Cassidy Whitmore had regarding Mr. Stamp's possible prior representation of the City
of Carmel-by-the-Sea on personnel matters. City Administrator Rich Guillen was not involved in
decisions regarding the City's investigation of Plaintiffs allegations, because he was the target of
the allegations.
5. On December 18, 2008, I v.Tote to Mr. Stamp informing him that the outside
investigator would complete the investigation without interviewing Plaintiff because Plaintiff had
refused to be interviewed. A true and correct copy of my letter is attached hereto as Exhibit 1.
6. The outside investigation into Plaintiff's allegations against the City Administrator
was completed on January 16, 2009. I informed Plaintiff of the results of the investigation by
sending a Notice of Completion to Mr. Stamp on February 9, 2009. A true and correct copy of
my letter is attached hereto as Exhibit 2. (The exhibit is redacted in order to maintain the
confidentiality of the investigation.)
- 2 -
-------
BOLANOS DECL. SUPPORTING MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL
0392
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7. After I sent the February 9. 2009 Notice of Completion to Mr. Stamp, the City
considered the matter of Plaintiffs allegations against the City Administrator to be closed.
I declare under penalty of peijury under tbe laws of tbe State of California that tbe
foregoing is true and correct and that tbis declaration was executed on November /3, 2009 at San
Francisco, California.
I ;
LJ
Richard C. Bolanos
111462.1 CA200-014
- 3 -
BOLANOS DECL. SUPPORTING MOTION TO DISQUALIFY PLAINTifF'S COUNSEL
0393
0 0
EXHIBIT 1
0394
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LIEBERT CASSIDY WHITMORE
VIA FACSIMILE AND MAIL
Michael W. Stamp, Esq.
Attorney
Law Offices ofMicbael W. Stamp
4 79 Pacific Street, Suite 1
Monterey, CA 93940
Los Allotl.n 1 hliltiO I su fUiftiSco
December 18, 2008
Re: Jane Miller
Client-Matter: CA200-013
Dear Mr. Stamp:
l.S3 TCMJI5SHil51mT. $am 520
s.. """"""" t.wi<IU04 94107
Td4151512-31m F.{415l -
lUIOLUIOS@u:wt.itiALCON
Thank you for your letter dated December 17, 2008. We receive it as confinnation that
Jane Miller is not willing to be interviewed by the City's investigator Karen Kramer. The City
will proceed to complete its investigation in this manner. Please do not hesitate to call me
directly should you have any questions in this regard.
Very truly yours,
LffiBERT CASSIDY WHITMORE
RCB//em
cc: Don Freeman
www.lcwlepl.com
0395
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EXHIBIT 2
0396
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LIEBERT CASSIDY WHITMORE
A Ptot1UICH4t. LAw CououTIOH
tcs Aff<>ILIS I FusMo I SAJI FtAMCJ.teO
CONFIDENTIAL PERSONNEL DOCUMENT
Michael Stamp
Law Offices of Michael G. Stamp
479 Pacific Street, Suite 1
Monterey, CA 93940
February 9, 2009
IS) TOWHnrn> STU:JT. Strm 520
94107
T;(4l5)5U300J
RBOUNOS@LCWt.iGAL.COM
\415) 512-31.120
Re: Notice of Completion of Investigation- Jane Miller's Workplace Complaints
Client-Matter: CA200-013
Dear Mr. Stamp:
As you know, on or about August 7, 2008, the City contracted with private investigator
Karen Kramer to investigate Jane Miller's various allegations of workplace misconduct
concerning her employment with the City of Carmel. Investigator Kramer interviewed twelve
witnesses, including a majority of the witnesses Ms. Miller identified in her written complaints.
Investigator Kramer also thoroughly reviewed various City organizational and/or policy
documents, and she completed her investigation on pr aboQt January 16,2009. Pursuant to the
City's Harassment policy, the City Council has now received the results of Ms. Kramer's
investigation. This letter is to notify you of the City's determination. Please be advised tbat
tbe information contained io tbls letter Ia considered confidential personnel material and
sbould Dot be disclosed, directly or Indirectly, to anyone otber tbao your client Ms. Miller.
REDACTED
www.kwlegal.com
0397
Michael Stamp
February 9, 2009
Page2
0
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REDACTED
0398
Michael Stamp
February 9, 2009
Page 3
0 0
REDACTED
0399
Michael Stamp
February 9, 2009
Page4
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0400
Michael Stamp
February 9, 2009
Page 5
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Based on Ms. Kramer's findings and conclusions the City has determined that Ms.
Miller's allegations are not substantiated. Accordingly, this investigation is now closed and
deemed completed.
The City reaffinns its policy and commitment to providing a respectful and productive
workplace. As you know, City policy also prohibits persons from retaliating against another for
having reported harassment or wrongdoing or for participating in the complaint and investigation
process. Finally, City policy requires employees to preserve the privacy of those involved in the
investigation process to the extent possible. To that end, please instruct Ms. Miller to not discuss
the results of the investigation with her colleagues at work. Instead, please direct any concerns
you may have to our office.
In addition, please immediately report actions, comments, or conduct, if any, that you
believe to be discrimination, harassment, or retaliation for Ms. Miller's participation in this
complaint and investigation process. You can rest assured that if the City receives complaints of
alleged retaliation against anyone who participated in this or any other complaint process, the
City will investigate, and if the allegations are sustained, the City will impose discipline and/or
take all appropriate remedial action.
REDACTED
0401
Michael Stamp
February 9, 2009
Page6
0 0
Please contact me if you have any questions or concerns.
Sincerely,
LIEBERT CASSIDY WHITMORE
' ~ A ? ~ , ! J ~ ~
Richard C. Bolanos '@V
RCB/nllem
cc: Don Freeman
8410!.2 CA200.01J
0402
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PROOF OF SERVICE
I, the undersigned, 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 the date set forth below, I served the within:
DECLARATION OF RICHARD C. BOLANOS IN SUPPORT OF CITY'S MOTION TO
DISQUALIFY PLAINTIFF'S COUNSEL
on the following interested party(s) in this action:
Michael W. Stamp
Law Offices of Michael W. Stamp
479 Pacific Street, Suite One
Monterey, CA 93940
(831) 373.0242 FAX
VIA FACSIMILE- CCP 1013(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 transmission(s) was reported completed
without error.
I declare under penalty of perjury that the foregoing is true and correct and of my personal
knowledge.
\=l
Executed at San Francisco, California on November 1'6, 2009.

[AndreaS. BolnickJ
99081.1 CA200-() 14
- 1 - PROOF OF SERVICE
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Richard C. Bolanos, Bar No, 111343
rbolanos@lcwlcgal.com
Suzanne Solomon, Bar No. 169005
ssolomon@lcwlegal.com
LIEBERT CASSIDY WHITMORE
A Professional Law Corporation
I 53 Townsend Street, Suite 520
San Francisco, CA 94107
Telephone: (415) 512-3000
Facsimile: (415) 856-0306
Attornevs for Defendant
CITY OF CARMEL-BY-THE-SEA
0
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
JANE KINGSLEY MILLER,
Plaintiff,
V,
CITY OF CARMEL-BY-THE-SEA and
DOES 1 through 100, inclusive,
Defendant
Case No. M99513
ASSIGNED TO JUDGE LARRY E. HAYES.
DEPT 4, SALINAS DIVISION
SUPPLEMENTAL DECLARATION OF
HEIDI BURCH IN SUPPORT OF CITY'S
MOTION TO DISQUALIFY PLAINTIFF'S
COUNSEL
Date: December 18, 2009
Time: 8:45a.m.
Dept: 4
(Exempt from filing fees pursuant to Cal.
Gov. Code 6103)
I, Heidi Burch, do hereby declare the following:
I. I have been employed by Defendant City of Carmel-by-the-Sea since 2005. My
current position is Assistant City Administrator/City Clerk. In that capacity, I have personal
knowledge of the facts set forth below. If called upon to do so, I would testif'y competently to
such facts and the authenticity of such documents.
SUPP. BURCH DECL, SUPPORTING MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL
0404
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2. Attached hereto as Exhibit I are documents that I found in the City's files on
November 12, 2009. while I was looking for something else. (The documents are redacted to
protect employee privacy rights.) These documents were located in a file labeled simply
"Personnel Files Needed." I had never seen these documents before, and did not discover these
documents when I first searched for documents, in the summer of2009, relating to Mr. Stamp's
prior representation of the City on personnel matters.
3. During July and August 2009, I searched the City's files regarding Mr. Stamp's
prior representation of the City in personnel matters. I was initially informed by Administrative
Services Director, Joyce Giuffre, that all pre-2000 invoices had been destroyed as part of the
City's routine document destruction schedule, although Deputy City Clerk, Molly Laughlin was
able to locate a few billing invoices Mr. Stamp had submitted to the City. It was subsequently
discovered that some of the invoices had not been destroyed. Therefore, I began my search by
looking for all billing invoices sent to the City by Michael Stamp and paid by the City, as well as
any other documents relating to Mr. Stamp's representation of the City on personnel matters.
4. I first searched for files in the City's Human Resources Department, since it
occurred to me that documents relating to Mr. Stamp's representation of the City on personnel
matters would be located there. Plaintiff Jane Miller, the Human Resources Manager, was on
leave during the time I conducted my search. J searched Ms. Miller's office files and did not find
any documents relating to Mr. Stamp's representation of the City on personnel matters. I did not
find any documents anywhere in the Human Resources Department regarding Mr. Stamp's
representation of the City on personnel matters. Moreover, I found no file anywhere in the City
containing Mr. Stamp's name on it, and no other file in the City labeled to indicate that it would
contain documents regarding Mr. Stamp's prior work for the City on personnel matters.
5. I also searched the following locations for documents relating to Mr. Stamp's
representation of the City on personnel matters: a City storage unit locating in Del Rey Oaks; a
storage space in the attic at Vista Lobos (a City facility); the City's vault at City Hall; the City's
email records and records kept by the Administrative Services Department, the Payroll
Department, and the Fire Department. I also retrieved documents stored in a crawl space in the
; - 2-
SUPP. BURCH MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL
0405
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boiler room underneath the stairs at City Hall, bolles that a former employee had stored without
labeling them.
6. All of the documents that I located regarding Mr. Stamp's prior representation of
the City on personnel matters were located in files whose file names and locations contained no
clue that they might contain such documents. All of the files were in storage. For ellample,
some of the documents came from a box labeled "'92 Budget I Laub I Reclamation I Flanders I
Lawsuits." Other documents came from unlabelled boxes or files labeled "confidential" or
"correspondence." I found other documents in a file marked "Bid Materials."
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 November a 2009 at
Carmel-by-the-Sea, California.
lieidi Burch
11146LI CA200.014
SUPP. BURCH DECL. SUPPORTING MOTION TO DISQUALIFY PLADITIFF'S COUNSEL
0406
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EXHIBIT 1
0407
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CITY IBU.
IHlX CC
CAH\Ifl. !1\'.TIH ,..,f...\. (_,\IIH JIH\L\ H'J!l
7 August 1992
City of Carmel-by-the-Sea
Dear
In response to your rebuttal letter concerning the Employee
Performance Evaluation (Special) for the period of 7 July 1992
to 28 July 1992, I am forwarding to you a copy of the City of
Carmel-by-the-Sea's Policy No. C89-13, arassment Sexual
Harassment Policy and Procedures for fi
Also enclosed is a Complaint Form Harassment/Sexual Harassment
for you to provide the pertinent information and submit to me.
Upon my receipt of the executed document, as detailed in the
City's Harassment/Sexual Harassment Policy No. C89-13, I will
initiate the formal investigation of the allegations.
Please return the completed complaint within three (3) working
days: by Wednesday, 12 August 1992, no later than 5:00p.m.,
either hand delivered to my office at City Hall, or mailed to
City Hall, P 0 Box CC, Carmel-by-the-Sea, CA 93921.
Respectfully submitted,
Acting City Administrator
enclosures
c: 11ichael Stamp, Attorney at Law
0408
MICHAEl. W. STAMP
J01.
LORETTA L. LOOP
0
Via Facsimile & Mail
0
l.AW Ol"'fl'IC5
STAMP AND FRANKLIN
PINE AVENUe:
PACIFIC OH:OVE. CAUP'ORN'IA
August 7, 1992
Mary-Margaret O'Connell
at La.t:
4ll Pacific Street, suite 208
Monterey, CA 93940
Re: /City of carmel-by-the-sea
Dear Ms. O'Connell:
n:L.PHONE
l408) 373 ... I 2: 14
FACSIMILE
(406) 373-0242
Following up our discussion of yesterday, I spoke with the
City about your client,
had already asked for a
and that request had been granted
yesterday. Her direct supervisor
will be at least a four-day break
the "war zone."
Vou should be aware that
day of vacation on August 10,
even before you and I spoke
is off work today, so there
in what describes as
At your suggestion, the City is responding to
August 6 rebuttal. That response will be delivered directly to
her. I hope that this does not lead to a series Of rebuttals to
responses to rebuttals and responses to rebuttals to responses to
rebuttals. As I told you yesterday, and as ftas been
advised in the past, the City's prior practice has been to accept
all rebuttals and file them with the personnel evaluations
without setting the whole process into motion with a further
response to a rebuttal. Be that as it may, will get a
further response this time.
Also at your suggestion, the daily counseling previously
explained to ; (to which she did not object) has been
discontinued even before it starts. Periodic written reports
will be made instead. The computer self-teaching time blocks
also are discontinued pursuant to your statement that your client
believed them to be of no value.
The city Administrator has taken steps to provide
with a sexual harassment complaint form pursuant to city policy.
If she completes the form and turns it in, any investigation will
be undertaken promptly. In the meantime, and based upon your
representations yesterday, the City is locating a suitable and
available investigator from outside the
. '
0409
0
Mary-Margaret O'Connell
August 7, 1992
Page Two
0
REDACTED
divisions of the
policy as well.
earlier, but she
City. is receiving a copy of the city
(It is my understanding that one was provided
will get one at this time in any event.)
-------a
I also want to confirm that you and understand
that if chooses to see a counselor or therapist, that
is her decision and not the City's. The City previously
suggested counseling and offered to make a counselor available at
'no cost, but that has been consistently rejected by and
now by insur:nco, paid for by the
1
city, which may cover all or part of the cost of counseling
:sessions, and she is free to make whatever arrangements she
,chooses. No one ever told her she "had to go to Gilroy" for
counseling.
As I explained to you yesterday, the City's immediate goals
:at this time are to avoid unnecessary tension, to keep the
situation from getting worse, to solve any problems, and to
continue the summer recreation programs. The City also is
committed to treating its employees fairly and with respect.
Finally, this confirms my willingness to meet with you, to
work with you, and to consider any proposals to make the
'situation work. Perhaps you have some constructive suggestions
in that regard; please let me know.
MWS:bjs
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0

aUne'Y aaraw
4 n poclflutreet, sufte :us
rrK>nter'e'r. callfmtla 9l944l
(4C81 e4!HXJ 1t.l
Michael Stamp
Stamp and Franklin
605 Pine Avenue
Pacific Grove, CA
REDACTED
RE: /City of Carmel
Dear Mr. Stamp,
I am faxing this comment to you.in the hopes of saving
someone unnecessary work.
It: is not necessary for anyone to "rebut"
to her performance evaluation. If I left you witn
impression, I hereby clear up that misirnpression.
rebuttal
that
My point was t:hat the in her performance rebuttal
regarding the hostile work environment should not be ignored.
Supplying with the formal .documents whereby she may
submit her issues through a different forum will satisfy my
concerns. Clearly, the City Administrator's efforts in pro-
viding the complaint forms cemonstrates that concern$
are not being ignored.
Thank you for documenting the other issues in our conversation.
Although I disagree with the position that no one 'told
to attend couns.eling in Gilroy. She was told that the location
was Gilroy, that is why the idea was unattractive to her.
r have provided her with my encoura9etnent that she use her
regular insurance to seek local counseling assistance.
. '
. .
0411
0
August 13, 1992
St:3m?
Stamp & Franklin
605 Pine Avenue
0
.4 U podfk; Ated. tulle :21:8
mtterer. caUfunla 9l<J.4C
(.4C:SI e49-('41.J
Pacific Grove, CA 93950
RE:
Dear Mr. Stamp,
I have reviewed
her claims of qostile
formal complaint documents regarding
work environment and gender discrimination.
feels that her complaint should document an eKchange that
she had with Slty regarding his questions
into her contacts w t an at orney in reference to this matter.
curiosity over right to seek legal counsel
me it hindered ability does seem inappropriate. She tells
to feel comfortable dealing with
I was not aware of
is correct that
documented. As to
her claims and our
had time to really
Please comment.
cc;
this twist when I last spoke with you.
comments and questions should be
any effect upon how the city will proceed with
discussions regarding proceedure, I have not
think about or research.
. '
. .
0412
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PROOF OF SERVICE
r, the undersigned, 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 !53 Townsend Street,
Suite 520, San Francisco, California 941 07.
On the date set forth below, I served the within:
SUPPLEMENTAL DECLARATION OF HEIDI BURCH IN SUPPORT OF CITY'S
MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL
on the following interested party(s) in this action:
Michael W. Stamp
Law Offices of Michael W. Stamp
4 79 Pacific Street, Suite One
Monterey, CA 93940
(831) 373.0242 FAX
VIA FACSIMILE- CCP 1013(e); CRC 2008:
By arranging for facsimile transmission from facsimile number ( 415) 8560306 to the above listed
facsimile number(s) prior to 5:00p.m. The facsimile lransmission(s) was reported completed
without error.
I declare under penalty of peljury that the foregoing is true and correct and of my personal
knowledge.
Executed at San Francisco, California on November {1'2009.
CfAAJAM
[AndreaS. Bolnick]
99081.1 CA200.{)14
- 1 - PROOF OF SERVICE
prpro
0413
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0
Richard C. Bolanos, Bar No. 111343
rbolanos@lcwlegal.com
Suzanne Solomon, Bar No. 169005
ssolomon@lcwlegal.eom
LIEBERT CASSIDY WHITMORE
A Professional Law Corporation
153 Townsend Street, Suite 520
San Francisco, CA 94107
Telephone: (415) 512-3000
Facsimile: ( 415) 856-0306
Attorneys for Defendant
CITY OF CARMEL-BY-THE-SEA
0
SUPERIOR COURT OF TIIE STATE OF CALIFORNIA
COUNTY OF MONTEREY
JANE KINGSLEY MILLER,
Plaintiff,
v .
CITY OF CARMEL-BY-THE-SEA and
DOES I through 100, inclusive,
Defendant.
CaseNo. M99513
ASSIGNED TO JUDGE LARRY E. HAYES,
DEPT. 4, SALINAS DIVISION
APPENDIX OF NON-CALIFORNIA
AUTHORITIES IN SUPPORT OF CITY'S
MOTION TO DISQUALIFY PLAINTIFF'S
COUNSEL
Date: December 18, 2009
Time: 8:45 a.m.
Dept: 4
(Exempt from filing fees pursuant to Cal.
Gov. Code 6103)
Defendant City of Carmel-by-the-Sea hereby lodges the following Index of Non-
California Authorities filed in support of its Supplemental Brief in Support of Motion to
Disqualify Plaintiff's eounsel.
II
II
1. Hilleby v. FMC Corp. (N.D. Cal. 1992) 1992 WL 455436.
APPENDIX OF NON-CAL AUTHS. SUPPORTING MOTION TO DISQUAUFY PLAINTIFF'S COUNSEL
0414
0 0
2. Image Technical Services, Inc. v. Eastman Kodak Co. (N.D. CaL 1993) 820 F. Supp.
2 1212.
3
Dated: November 16,2009
4
5
6
7
8
9
111589.1 CA200-Ill4
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APPENDIX OF NON-CAL AUTHS. SUPPORTING MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL
0415
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Westlaw
Page 1
Not Reported in f.Supp., 1992 WL 455436 (N.D Cal.), 25 U.S.P.Q.2d 1413
(Cite as: 1992 WL 455436 (N.D.Cal.))
H
United States District Court, N.D. California.
Hakan HlLLEBY, Plaintiff,
v.
FMC CORPORATION, Defendant.
No. C-91-0568 FMS (CW).
May 13, 1992.
Duan_eliJylathiowetz and J. Georg of Town-
send & Townsend, for Hakan Hilleby.
Rol?el1 A. Vitale Jr. of Niro, Scavone, Haller and
Niro, for FMC Corp.
ORDER ON DEFENDANTS MOTION FOR DIS-
QUALIFICATION OF PLAINTIFFS COUNSEL
AND PLAINTIFF'S COUNTER-MOTION FOR
BIFURCATION AND STAY.
WILKEN, United States Magistrate Judge.
*I This matter came on for hearing before Magistrate
Judge Claudia Wilken on May I, 1992, on referral
from the Honorable Fern M. Smith.
Motions to disqualify counsel, to bifurcate and to stay
are not dispositive of a claim or defense of a party,
nor are they motions which may be referred to a
Magistrate Judge only for a report and recommenda-
tion. Eec,I.R.Civ.P. 72(a}; 28 U$.C. 636(b )(I )(A)
and (BJ Accordingly, the undersigned determines
and disposes of the motions herein, subject to recon-
sideration by the District Judge if the order is clearly
erroneous< ld.: N.D.Cai.R. 410-l(a).
Having read the papers filed in support of and in op
position to the motion and having heard the argu-
ments of counsel, the undersigned hereby finds and
orders as follows.
L PROCEDURAL AND FACTUAL BACK-
GROUND
Represented by the law firm of Townsend & Town-
send, Hilleby filed this suit on February 26, 1991,
accusing FMC of infringing his U.S. Patent No.
4 884 393. On July I, 1991, FMC filed a counter-
claim accusing Hilleby of infringing its U.S. Patent
No. 4 335 570. Hilleby's answer raised the defenses,
among others, that the '570 patent is invalid, void,
and "unenforceable by reason of FMC's conduct in
the presentation and prosecution, in the United States
Patent and Trademark Office, of the application for
such patent."
FMC's motion is based on a conflict of interest aris-
ing because a partner of Townsend & Townsend.
James M. Heslin, was the in-house patent attorney for
FMC who prepared and filed the application for the
patent that is the basis of FMC's counterclaim.
Hilleby's counter-motion requests that, should the
Court find that there was a conflict of interest that
was not waived, the Court bifurcate and stay the
counterclaim which is the basis of the connie! of in-
terest
Mr. J< Georg Seka, Hilleby's lead counsel in this case,
first noticed this conflict of interest in October of
1991. He did not inform FMC, but did attempt to
establish an "ethical wall" between Heslin and this
case. FMC first learned of the conflict in early Febru-
ary, 1992. Shortly thereafter, on February II. 1992, it
notified Hilleby of the conflict and suggested that
Townsend & Townsend withdraw from the case, or
dismiss Hilleby's invalidity and unenforceability de-
fenses to the counterclaim. Billeby refused FMC's
request, and on March 26, 1992, FMC filed this mo-
tion.
In 1984, Seka represented another party who was
accused by FMC of infringing its :i7j)_ patent. At that
time, Seka received a letter from the finn
ing FMC in that matter notifying him that Heslin had
previously worked for FMC and bad prepared and
filed the '570 patent. This letter to Seka was copied
to Richard Megley, an in-house attorney for FMC. In
early October 1991, the deposition of FMC attorney
Ronald Kamp was taken at the Townsend offices.
Michael Lee, another FMC attorney, attended the
deposition. During a break, Townsend attorney
Mathiowetz heard Kamp and Lee comment that Jim
lieslin was not in the office that day. Hilleby argues
that these facts demonstrate that FMC was aware of
2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
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Page 2
Not Reported in FSupp., 1992 WL 455436 (N.D.Cal.}, 25 U.S.P.Q.2d 1413
(Cite as: 1992 WL 455436 (N.O.Cal.))
the conllict of interest in 1984.
*2 FMC denies that it was aware of the contlict prior
to February of 1992, and the Court credits this denial,
particularly since Seka himself did not recall the con-
flict until October of 1991.
IL CONCLUSIONS OF LAW
A. Prior representation that is "substantially re-
lated" 10 the current representation requires dis-
qualification of the attorney
The Ninth Circuit, in Trone v. Smith 621 F.2d 994
(9th .<:::ir.l980), held that an attorney is disqualified
from representing a client if he or she previously rep-
resented an adverse party in an aclion "substantially
related" to the current representation.ld at 998.
Where a member of a law firrn prosecuted a patent
for an adverse party, and then later joined a law firrn
which sought to deem that very patent invalid, the
Federal Circuit has held those two matters to be sub- .
stantially related Sun Studs Inc. v. Applied T,heory
Associates lnL_ 772 F.2d .1557 1566
Mr. Heslin's participation in pre-
paring and filing the application for FMC's U.S.j>at-
\'m. No. 570 is substantially related to FMC's coun-
terclaim alleging Hilleby's infringement of the same
patent.
Hilleby does not dispute that Mr. Heslin's participa-
tion in tiling the patent application for Patent No.
'570 is substantially related to the counterclaim, and
admits that a potential conflict arises because of some
of the defenses to FMC's counterclaim.
"Onee the attorney is found to be disqualified, both
the attorney and the attorney's firm are disqualified
from suing the former client." Trone v. Smirh 621
Lf.\Lat 999. Confidential information possessed by
one artomey may or may not have been shared with
other members of the firm but the firm as a whole is
disqualified whether or not its other members were
actually exposed to the information. !d. Even if there
were no actua! disclosures, the mere possibility, or an
appearance of the possibility of disclosure of confi-
dential information is sufficient to disqualifY the at-
tomey./d at 998-99.
Atasi Corp. v, ... Seagate Techno/ow 847 F.2d 826
(Feb.Cir.l988) holds to the same effect. A presump-
tion exists that the other members of the tirrn shared
in the confidential information.ld at 829-30.
B. The Availability of an Ethical Wall Deftnse.
Hilleby argues that the Townsend & Townsend firm
need not be disqualified from representing him be-
cause the firrn created an "ethical wall" between Mr.
Heslin and the attorneys involved in this case and no
actual sharing of information occurred.
In some circuits, the presumption of shared confi-
dences may be rebutted by evidence of an effective
screening of the tainted attorney from the rest of the
firrn. Atas1 84 7 F.2d at 831. Such a screening is
known as an "ethical wall." The Ninth Circuit, how-
ever, has not yet ruled on the availability of such a
defense to disqualification. ld
Even if the ethical wall defense were available in this
circuit, Hilleby has not made a showing of all the
factors needed to create a sound ethical wall. See
Haagen-Dazs Co. Inc. v. Perche No' Gelato Inc.
639 F.Supp. 282, (N.D.Ca1.1986) and Employers Ins.
o( Wausau .. v. Albert D. Seeno Cont., 692 F.Supp.
1150, 1164-65 n. 17 fN.[,),Cal.l988l. The Court finds
that the attempted "ethical wall" raised here does not
obviate the need for disqualification.
C. Waiver of the Conflict by Lapse of Time
*3 A former client who is entitled to object to an at-
torney representing an opposing party on the ground
of conflict of interest but who knowingly refrains
from asserting it promptly is deemed to have waived
that right. TrusL,Corp. v. Piper Aircraft Corp .. 70 I
F.2d 85 87 j9th Cir.1983). The proponent of the
waiver has the burden of establishing it. Paul E.
Iacono EnlJi!J.g_er Inc v. Humphrev. 722
F.2d 435,443 (9th Cir.l983).
In Trust Corp., the attorney accused of a conflict had
informed his former client of the possible conflict,
provided the files to the former client, and asked if
his former client objected. The former client then
waited two and one-half years before bringing the
disqualification action. The Ninth Circuit upheld the
district court's denial of Trust Corp.'s motion to
20091ll0mson Reuters. No Claim to Orig. liS Gov. Works.
0418
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Page 3
Not Reported in F,Supp., 1992 WL 455436 (ND.CaL), 25 U S.P.Q.2d 1413
(Cite as: 1992 WL 455436 (N.D.Cal.))
qualify opposing counsel from the entire case, find-
ing that Trust Corp. had waived its right to object.
However, Hilleby's counsel neither sought to raise
the potential of a conflict with FMC's counsel nor to
provide FMC with an opportunity to object. Hilleby's
claim that FMC was aware of the conflict and did not
need to be told is not credited.
D. Bifurcation and Stay
Along with his opposition. Hilleby also filed a mo-
non to bifurcate and stay FMC's counterclaim for
patent infringement.
FedKCiv.P. 4.2ill states
The court, in furtherance of convenience or to avoid
prejudice, or when separate trials will be conducive
to expedition and economy, may order a separate
trial of any claim, cross-claim, counterclaim, or
third-party claim ,
Hilleby argues that if his counsel are disqualified and
the complaint and lhe counterclaim are nol bifur-
cated, he will suffer extreme prejudice, However,
judicial efficiency would be disserved by bifurcatmg
the counterclaim. The complaint and the
claim involve the same parties, the same technology,
the same expert witnesses, most of the same lay wit-
nesses and most of the same issues of patent validity
and infringement. The prejudice to Hilleby is mini-
mized by the solution the Court adopts below,
Ill. CONCLUSION
Townsend & Townsend may not represent Hilleby on
FMC's counterclaim by raising the defenses of the
invalidity, unenforceability, or voidness of the '570
patent, or any other defense that attacks the applica-
tion, prosecution or issuance of the patent If Hilleby
wished to pursue these defenses, Townsend & Town-
send would be required to withdraw as counsel on the
counterclaim, although the finn would be allowed to
remain as counsel on the complaint H illeby has indi-
cated that. under these circumstances, he desires to
waive the above defenses. So, to mmimize the preju-
dice to Hilleby, Townsend & Townsend may remain
as counsel on his complaint and on the counterclaim,
defending on the ground that the '570 parent was not
infringed,
The ethical wall, as described in the Declaration of J.
Georg Seka filed in connecl!on with this motion,
shall be maintained, Any breach of it shall be a viola-
tion of this Court's order, punishable by contempt
*4 Hilleby's counter-motion to bifurcate and stay
FMC's counterclaim is DENIED.
IT IS SO ORDERED.
FN L In Sun Studs, the Federal Circuit held
that as a matter of policy, the Federal Circuit
reviews procedura) matters that are not
unique to patent matters under the law of the
particular regional circuit court where ap-
peals from the district court would nonmally
lie. S.un Studs 772 F.2d at 1566. The Federal
Circuit also stated that motions for disquali-
fication of an attorney are procedural mat-
ters. In Sun Stud,, the standards adopted by
the Ninth Circuit controlled, ld
N.D.Cal.,l992,
Hilleby v, FMC Corp.
Not Reported in FBupp.. l 992 WL 455436
(N.D.Cal.), 25 U.S.P.Q.2d 1413
END OF DOCUMENT
2009 Thomson Reuters. No Claim to Orig, US Gov. Works.
0419
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Westlaw
820 F.Supp. 1212, 19'13-1 Trade Cases P 70,268
(Cile as: 820 F.Supp. 1212)
United States District Court,
N.D. California.
IMAGE TECHNICAL SERVICES, INC .. et al.,
Plaintiffs
V.
EASTMAN KODAK COMPANY, Defendant.
No. C 87-1686 BAC.
May 17, 1993.
In antitrust litigation, defendant moved for disqualifi-
cation of plaintiffs' counsel. The District Court, Caul-
field, 1., held that: (l) firm failed to obtain "informed
consent" under California law with respect to adverse
representation; {2) there was no waiver by reason of
delay in making the motion; and (3) no exception to
rules about adverse representation exists in case of
multinational clients and international law firms.
Motion granted.
West Headnotes
ill Attorney and Clienl 45 :=20.1
42 Attorney and Client
'[5J The Office of Attorney
451(l?J Privileges, Disabilities. and Liabilities
~ 5 k 2 0 Representing Adverse Interests
45k20. I k. In General. MosL Cited
Cases
Under California law, decision whether to disqualifY
counsel for conflict of interest is matter addressed to
discretion of trial judge.
J1l Attorney and Client 45 ::::=>21.5(1)
4 5 Attorney and Client
-lit The Office of Attorney
ill(.E.I) Privileges, Disabilities, and Liabilities
45k20 Representing Adverse Interests
45k21 .5 Particular Cases and Problems
45k21.5( Ilk. In General. Most Cited
0
Page I
California law applied to motion to disqualifY oppos-
ing counsel even though members of opposing firm
who represented opponent before United States Su-
preme Court were acting outside California and were
not members of California Bar Association, since
motion was made in district court for the Northern
District of California and disclosure made by firm in
Hong Kong was that San Francisco office of firm
would participate in briefs before the Supreme Court.
U.S.Dist.Ct.Rules N.D.Cal., Rule I l0-3.
b!l Attorney and Client 45 ::::=>20.1
-!l Attorney and Client
451lbe Office of Attorney
451(B) Privileges, Disabilities, and Liabilities
45k20 Representing Adverse Interests
45k2Q.J k. In General. Most Cited
cases
Under California law, attorney's conduct is to be
evaluated by Rules of Professional Responsibility in
effect at time of conduct
1
even where subsequent
amendments to those Rules are in force at time of
decision on motion to disqualifY for conflict of inter-
est. Cai.Protconduct Rule 3-310 (19921
J!1 Attorney and Client 45 ::::=>21.10
45 Attorney and Client
451 The Office of Attorney
45Jilll Privileges, Disabilities, and Liabilities
45k20 Representing Adverse Interests
45k21.10 k. Disclosure, Waiver, or
Consent. Most Cited Cases
Law firm failed to obtain uinformed consent" under
California law before participating in briefs in United
States Supreme Court in opposition to existing client,
thus warranting disqualification from continued rep-
resentation of other party, where firm did not explain
to officials of existing client how representation
would be adverse or inform client that firm was actu-
ally going to appear on the brief before the Supreme
Court, and did not inform those officials that client
was party to action before the Supreme Court, nature
of underlying action, or potential exposure to client,
or details of why interests were contrary.
Cal. Prof. Conduct Rule J-J 10 (1992).
<!::l 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
0421
0
820 F.Supp 1212, 1993-1 Trade Cases P 70.268
(Cite as: 820 F.Supp. 1212)
.Iii Attorney and C!ienl45
'[? Attorney and Client
The Office of Attorney
Privileges, Disabilities, and Liabilities
12.1<20 Representing Adverse Interests
0 k. Disclosure, Waiver, or
Consent. Most Cite<;! Cases
Client did not waive motion to disqualify law firm
from representing opponent in action against it.
though firm's name appeared on opponent's brief be-
fore United States Supreme Court months before
disqualification motion was made, where it was pos-
sible that client corporation would not be aware of
law firm's representing its overseas division. it was
not shown that client gained any tactical advantage
from alleged delay, and law firm's disclosure indi-
cated only that it would participate in brief before
Supreme Court and did not indicate that it would
participate at district court level following remand.
l!il Attorney and Clint 45 (;:::;;>21.20
45 Attorney and Client
451 The Office of Attorney
451(8) Privileges, Disabilities, and Liabilities
451<21.20 k. Disqualification Proceedings;
Standing. Mqst Cited Cases
In order to successfully claim laches as defense to
motion for disqualification of counsel on ground of
conflict of interest) opponent of motion had to estab-
lish that: movant long ago had notice of adverse rep-
resentation; movant intentionally delayed moving for
disqualifications; opponents were severely tiurdened
by delay; and extreme and intentional delay allowed
movant to obtain tactical advantage.
1ll Atlorney and Client 45
45 Attorney and Client
451 The Office of Attorney
- 451(00 Privileges, Disabilities, and Liabilities
45k20 Representing Adverse Interests
45k21.5 Particular Cases and Problems
451<21.5(1) k. In General. Most Cited
Cases
No exception to rules about representation adverse to
existing client exists because multinational clients
and international law firms are 'involved; duty to eli-
0
Page 2
ent of undivided loyalty and necessity of infom1ed
client consent to adverse misrepresentation applies
internationally no matter how difficult are the com-
munication hurdles.
*1213 Gordon B. Spivack, Couden Brothers, Jame_o
A. Henne(\!J:, Law Offices of James A. Hennefer, San
Francisco, CA, for plaintiffs.
Donn P Pickett, McCutchen, Doyle, Brown & En-
San Francisco, CA, Jonathan W. Romeyn,
Eastman Kodak, Rochester, NY, for defendant.
*/2UORDER
CAULFIELD, District Judge.
Defendant Eastman Kodak Company ("Kodak")
brings a motion to disqualify plaintiffs' counsel, the
Coudert Brothers Law Firm ("Coudert"). Upon con-
sideration of the briefs and arguments of the parties,
and good cause appearing therefrom, Kodak's motion
to disqualify the Coudert firm is GRANTED.
FACTS AND BACKGROUND
The Coudert firm has provided legal services to
Easttnan Chemical, one of Kodak's three major oper-
ating divisions, for the last six years. These services
have covered a vast array of legal matters, including
competition law questions, joint venrures, contract
issues, tax issues, and questions concerning environ-
mental law. Coudert prefonned this work out of the
Washington, D.C., New York, Paris, Brussels, Hong
Kong and Singapore offices. For purposes of this
motion, it is undisputed that the work performed by
Coudert for Eastman Chemicals did not involve is-
sues directly relevant to this litigation. FNI
FN.L Coudert also represented a separately
incorporated independent French subsidiary
of Kodak, Kodak Path e. For purposes of this
opinion, the court deems Coudert's represen-
tation of Pathe irrelevant. See, State Bar of
California Standing Committee on Ptofes-
sional Responsibility and Conduct, Formal
Opinion No. 1989-113 (Parent and subsidi-
ary corporations are separate entities, there-
fore, representation of a wholly owned sub-
sidiary, let alone a separately incorporated
subsidiary, does not create a conflict of in-
2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
0422
0
820 F.Supp. 1212, 1993-l Trade Cases P 70,268
(Cite as: 820 F.Supp. 1212)
terest).
The facts and procedural background of this litigation
have been amply recorded in the orders issued by this
court, as well as the decisions of the Ninth Circuit
Court of AppealsEC!l and the United States Supreme
Court. "'' For purposes of the present motion, it is
sufficient to note that in 1991, Kodak appealed to the
United States Supreme Court a judgment of the Ninth
Circuit reversing and remanding the order of Judge
William Schwarzer dismissing plaintiffs' federal anti-
trust claims. Coudert was asked by James Hennefer,
counsel for the ISOs, to participate in the briefing
before the Supreme Court. The ISOs primary contact
with the Coudert firm was Douglas Rosenthal. A
conflicts check performed by Coudert disclosed that
the finn had an ongoing relationship with Eastman
Chemical and Kodak Pathe. The work for Eastman
Chemical was perfonned primarily by Coudert's
Hong Kong office. Mr. Rosenthal asked Owen Nee,
the managing partner of Coudert's Hong Kong Of-
fice, to disclose the conflict to the Eastman Chemical
representatives, and obtain their consent to Coudert's
representation of the ISOs.
fN2. 903 F}d 612 (9thCir.l.!}90).
FN3. 504 U.S. 451 112 S.Ct. 2072 ... lli
L.Ed.2d 265 ( 1992).
Mr. Nee planned to discuss the conflict during a
separately arranged meeting on other business with
Barry Falin, Director of Business Development for
the Filter Products Organization of Eastman Chemi-
cals, and Michael Chung, Manager of the Filter
Products Organization. In preparation for that meet-
ing, Mr. Nee discussed with Mr. Rosenthal what in-
fonnation was to be given to the Eastman Chemical
business representatives. Mr. Rosenthal telefaxed Mr.
Nee on July 13, 1991 as follows:
I have seen your fax of today and have spoken both
to Ken Katz and Steve Hudspeth. I am authorized by
both of them to affinn we trust your judgment about
what to say, in passing, about our involvement in the
Kodak Supreme Court case, when you meet with
officials of Kodak Chemical dealing with China this
Monday.
As a small mod lficatlon to your proposed statement,
might I suggest the following:
0
Page 3
Our San f-rancisco office is going to parlicipale in a
brief contrary to the interests of the Kodak Corpora-
tion m the Supreme Court Appeal; and after review
of the matter we have determined that the China rep-
resentation is sufficiently dtstant that the actions of
the San F'rancisco office do not constitute a conflict
of interest. (emphasis added) r=>'
FN:t Coudert's San Francisco office partici-
pated in two amicus briefs to the Supreme
Court. Coudert's Washington, D.C. office
''participated" in the brief for respondents on
the merits before the Supreme Court.
*1215 After the meeting took place on July 23, 1991,
Mr. Nee wrote Mr. Rosenthal and Mr. Hudspeth in-
fonning them that he "explained the matter in the
fonn [they] sent to [him] by [their] telefax on July 12,
1991." Neither the documents submitted in opposi-
tion to Kodak's motion, nor the declaration of Mr.
Nee, retlect that Coudert advised Falin and Chung of
the nature of the contlict, the potential exposure to
Kodak, or even that Kodak was a party to the Su-
preme Court action Mr. Nee's telefax goes on to state
that Messrs. Falin and Chung approved of Coudert's
representation of the ISOs. Neither Messrs. Falin and
Chung recall any such conversations. Mr. Chung
testified specifically that even if he had been so in-
fonned, he did not recall Mr. Nee disclosing that
Coudert would represent the ISOs at the district court
level, or explaining the potential exposure Kodak
faced in this action.
On September 20, 1991, Kodak was served with Re-
spondent's Brief in the U.S. Supreme Court appeal.
The brief identified Coudert as co-counsel for the
ISOs. There is some dispute about when Coudert
disclosed to Kodak that it would participate in the
district court trial on remand, However, the parties
agree that on July 30, 1992, Gordon Spivack of Cou-
dert's New York office infonned Gary Van-
graafeiland, Senior Vice President and General
Counsel of Eastman Kodak, that Coudert would par-
ticipate in the preparation and trial of the ISO case in
this court. Coudert filed a fonnal notice of appear-
ance in this court on October 9, 1992.
DISCUSSION
A. Applicable Rules of Conduct
2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
0423
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820 F.Supp. 1212, 1993-1 Trade Cases P 70,268
(Cite as: 820 F.Supp. 1212)
WllJ Rule 110-3 ofthe Local Rules of Court for the
Northern District of California provides that the con-
duct of counsel before this court is governed by "the
standards of professional conduct required of mem-
bers of the State Bar of California and contained in
the State Bar Act, the Rules of Professional Conduct
of the State Bar of Californta, and decisions of any
court applicable thereto." llil Under California law,
the decision whether or not to disqualify counsel is a
maner addressed to the discretion of the trial judge.
illf.fL_Ins _ Exchange v. [ire man's _ Fund, ,1\
Cal.AppAth 1050, 1055,8 CaiRptr]d 22JU1.9W
FN5. Coudert argues that the California
Rules of Professional Conduct do not apply
to this case because the Coudert lawyers
who represented the ISOs before the U.S.
Supreme Court were acting outside of Cali-
fornia, and were not members of the Cali-
fornia Bar Association. This argument is
without merit First, as stated above, the
standards of professional conduct before this
court are those applicable under the Califor-
nia Rules of Professional Responsibility.
Second, by Coudert's own admission, the
disclosure made to the Hong Kong Eastman
Chemical officials was that the San Fran-
cisco office would participate in briefs be-
fore the Supreme Court. Aside from the fact
that such a disclosure is insufficient to meet
Coudert's duties to its clients (see Sect C
below), the disclosure about the San Fran-
cisco anomeys directly ratses the duty of at-
torneys who are members of the Callfornia
bar.
ill At the time Coudert began its representation of
the ISOs, the 1989 version of Rule 3-310 of the Cali-
fornia Rules of Professional Conduct were in effect
That version states in relevant part:
(A) If a member has or had a relationship with an-
other party interested in the representation ... the
member shall not accept or continue such representa-
tion without all affected clients' informed written
consent
(B} A member shall not concurrently represent clients
whose interests conflict, except with their informed
written consent.
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Page4
Under California authority, an anorney's conduct is to
be evaluated by the Rules of Professional Responsi-
bility in effect at the time of that conduct, even where
subsequent amendments to those Rules are in force at
the time of decision. See Tomlinson v. State Bar 13
CaL3d 567 569 n. L 119 caLRptr. )35, 531 .P.2d
1119 ( 1975); King v. Stale Bar, 52 CaUd 307, 311 n.
4 276 CaLRptr. 176, 801 P.2d 419 (1990); and
Q],{dugiian "' State Bqr 5? CaUd 1092,J094 n. I
~ } 8 Cai.Rptr. 90, 804 P.2d 715 (1991). As this court
must apply California Rules of Professional Respon-
sibility, including California case law, this court will
apply the rules in effect at the time Coudert states
that it obtained consent,f!!l
FN6. Plaintiffs argue that federal standards
should determine what version of the rules
apply. As Kodak correctly points out, the
resolution of this issue does not materially
alter the outcome of this motion. The Cali-
fornia Rules of Professional Responsibility
are disciplinary rules, and merely inform the
law controlling motions to disqualify. The
"rules are not intended to supersede existing
law relating to ... motion[s] for disqualifica-
tion of counsel due to conflict of interest...."
Discussion to Rule 1-100. Under California
law, there is a clear prohibition of anorneys
representlng two or more clients in the same
maner without informed wrinen consent.
See Truck Insurance Exchange. 6
Cal.App.4th, mQ(a, at 1055, 8 CaLRptr.2d
228. It is immaterial that the new version
may have created a lesser standard as plain-
tiffs suggest
1216 B. Wril/en Consent
At the time Coudert was invited to participate in the
brief before the Supreme Court in 1991, Coudert was
actively representing Eastman Chemicals in a variety
of international maners. Therefore, Coudert's repre-
sentation of the lSOs conflicted with the interests of
its existing client, Kodak. In 1991, Rule 3-310@}
provided that "[a] member shall not concurrently
represent clients whose interests conflict. except with
their informed wrinen consent...." Coudert admits
that it failed to obtain wrinen consent from Kodak
before representing the ISOs.
2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
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820 FSupp. 1212, 1993-1 Trade Cases P 70,268
(Cite as: 8211 F.Supp. 1212)
C. Informed Consent
[] Since Coudert failed to obtain written consent as
required under fonner California Rule 3-31 O(B),
Coudert failed to obtain consent. Even if written con-
sent was not required, the court finds that Coudert
failed to obtain "infonned consent" under (jni{ied
Agenry ... etc. v. Jelco Inc. 646 F,;!d 1339
!.9_th_.Clt..J981 ). Plaintiffs argue that under Jelco this
court is bound by a federal standard for disqualifica-
tion motions.'"' The court does not apply the federal
standard for the reasons stated in this opinion but
finds that the consent obtained here would be insuffi-
cient to meet Coudert's burden under the federal
standard. Plaintiffs offer the declaration of Mr. Nee,
in which he states that during a July 1992 meeting
with Barry Falin and Michael Chung. businessmen
who were managers at Eastman Chemical in Hong
Kong, he disclosed to Eastman Chemical the repre-
sentation of the ISOs. Coudert's own characterization
of the disclosures fails to meet the requirements an-
nounced in Jelco, Jelco, as jn this case, involved an
issue of representation adverse to a present client. In
reviewing the obligations of counsel as to present
clients, the Ninth Circuit stressed that "representation
adverse to a present client must be measured not so
much as against the similarities in litigation, as
against the duty of undivided loyalty which an attor-
ney owes to each of his clients." ,Jelco. 646 F.2d at
1345.
At the district court level, pursuant to
that court's local rules, the Code of Profes-
sional Responsibility of the State of Oregon
was applied. While the Ninth Circuit in
Jelco relied upon cases applying American
Bar Association Model Rules of Profes-
sional Conduct (similar to those found in the
Oregon rules) in reviewing the standard for
d isqualificalion, the Ninth Circuit expressly
declined to express an opinion as to which
law applied . . !e/co 646 F.2d at 1342 n. I
(pursuant to the Local Rules of the Oregon
District Court, that court applied Oregon
law).
The Jelco court held that to avoid disqualification
under Disciplinary Rule DR5-105(B) of the Code of
Professional Responsibility of the State of Oregon,
ill an attorney must satisry DR5-1 05(C)'s two condi-
tions: "First, each client must consent to the multiple
0
Page 5
representation after full disclosure of the risks. Sec-
ond, it must be 'obvious' that the attorney can ade-
quately represent the interests of each client." As to
the consent prong of this analysis, the court cited In
re Boivin 271 Or. 419 533 P.2d 171 (191i), as the
leading Oregon case on the meaning of "consent" in
Cannon 5 of the disciplinary rules of the State Bar of
Oregon. In Boivin. the court stated that consent must
be infonned consent, made after full disclosure of all
material facts:
fN8. Disciplinary Rule DR5-105(B) pro-
vides that: "A lawyer shall not continue
multiple employment if the exercise of his
independent professional judgment on be-
half of a client will be or is likely to be ad-
versely affected by his representation of an-
other client, except to the extent permitted
under DR5-105(C)." Code of Professional
Responsibility of the State of Oregon
( 1980).
To satisry the requirement of full disclosure by a
lawyer before undertaking to represent two conflict-
ing interests. it is not sufficient that both parties be
informed of the fact that the lawyer is undertaking to
represent both of them, but he must explain to them
the nature of the conflict of interest in such detail so
that they can *1217 understand the reasons why it
may be desirable for each to have independe/11 coun-
sel, with undivided loyalty to the interests of each of
them.
Boivin,533 P.2d at 174 (emphasis added).
Plaintiffs argue that the consent obtained from Mr.
Falin was informed and, moreover, that Kodak's deci-
sion to continue to employ Coudert, even after the
current motion was filed, is indicative of Kodak's
consent. The court disagrees. As stated above, there
is a dispute about Mr. Falin's consent Moreover,
such consent is not informed consent. By Coudert's
own admission, Messrs. Falin and Chung were told
only that the San Francisco office of Coudert was
going to participate in a brief before the Supreme
Court adverse to 'Kodak's interests. Coudert did not
explain how the representation would be adverse to
Kodak's interest, nor did Coudert infonn Kodak of
the fact that Coudert's New York and San Francisco
offices were actually going to appear on the brief
before the Supreme Court. In fact, the July 13, I 991
telefax and Mr. Nee's declaration do not state that Mr.
2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
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820 F.Supp. 1212, 1993-1 Trade Cases P 70,268
(Cite as: 820 F,Supp. 1212)
Nee told Messrs. Falin and Chung that Kodak was a
party to the action before the Supreme Court, the
nature of the underlying action, or the potential expo-
sure to Kodak, should the ISOs prevaiL
FN9. See Florida Ins. Guar. Ass'n Inc v.
Care)' F.Supp. 255
(SD.Fia.l990), in which that court, in grant-
ing a motion to disqualify counsel, found
"(m]ost gravely, {the fact that] the ... 'con-
sultation' did not disclose the magnitude of
the adverse interests at issue .... " ld
In Jelco, the court found that counsel had twice
alerted Jelen's counsel to the potential conflict and
asked whether Jelen wished to continue counsel's
retainer. On two separate occasions after full disclo-
sure of the conflicts, and discussions with its own
attorneys, Jelen consented to the representation. In
contrast, the disclosure made by Coudert in this mat
ter cannot be construed as "'informed."
The form, content and nature of the disclosure to
Messrs. Falin and Chung was deficient under the
standards for informed consent. Under both the Cali-
fornia and ABA Rules of Professional Conduct. Coo
dert owes its client, Kodak, the highest level of undi-
vided loyalty. Coudert's duties to disclose any repre-
sentation adverse to the interests of Kodak cannot be
fulfilled by mentioning "in passing" participation in a
brief contrary to the interests of the client without
stating the details of why the interests are contrary.
The exposure Kodak faces in this action is substan-
tial. Coudert's failure to fully disclose that exposure,
as well as the extent of its participation in this action,
falls short of the "undivided loyalty" it owes to its
client The details aTe essential to informed consent
so that the client can weigh and measure the nature of
the contrary interests and give informed consent
based upon knowledge of material facts.
0, Waiver
l2.lliU "Where the party opposing the motion can
demonstrate prima facie evidence of unreasonable
delay in bringing the motion causing prejudice to the
present client, disqualification should not be or-
dered." Western ContiYJ.ental Co. v. Natural Gas
Com 752 .. 763, 261 CaLRP!L 100
f.!2.!!2). Plaintiffs argue that Kodak waived its right to
object to its representation of the ISOs by failing to
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Page6
object in a timely fashton. Coudert's name appeared
on Respondent's Brief before the Supreme Court,
which was served on September 20, 1991. Accord-
ingly, plaintiffs' argument that Kodak had notice of
the adverse representation well before the instant
motion is without merit. In order to successfully
claim laches as a defense to this motion, plaintiff:;
must establish (a) Kodak long ago had notice of the
adverse representation, (b) Kodak intentionally de-
layed moving for Coudert's disqualification, (c) plain-
tiffs are severely burdened by the delay, and (d) the
extreme and intentional delay allowed Kodak to ob-
tain a tactical advantage. See Western
lJ.CaLApp.3,t at76J-764. 261 CaLRptr. 100.
In this day of multinational corporations and law
finns, it is possible that a corporation would not be
awaTe of the law firms representing its overseas divi-
sions. Moreover, while Coudert is charged with the
responsibility of performing conflict checks upon
taking on a new client, Kodak as the client is under
no such obligation. Absent some showing that Kodak
was aware of Coudert's*1218 duel representation
prior to September 1992, the court will make no find-
ing of waiver based on the appearance of the Coudert
firm on a brief before the Supreme Court.
Plaintiffs have not shown that Kodak has gained any
tactical advantage from the alleged delay in bringing
this motion after September 1992. Even assuming
that Coudert did disc lose the conflicting representa-
tion, Coudert's disclosure indicated only that Coudert
would participate in a brief before the Supreme
Court. Coudert did not indicate that it would partici-
pate in this action at the district court level until July
1992, after the case had been remanded back to this
court. Since the matter was remanded, the action has
been stayed. The court finds that in light of the pro-
cedural history of this case, and Coudert's involve-
ment, the delay was not extreme, prejudicial, inten-
tional, a severe burden; nor did the delay allow Ko-
dak any tactical advantage.
E. Policy Considerations
[?j Plaintiffs argue that an order disqualifying Cou-
dert would violate policy. This argument ignores the
long-standing rule in both California and Ninth Cir-
cuit cases prohibiting attorneys from accepting em-
ployment adverse to a current client without the cli-
ent's informed consent In light of this court's ruling
2009 'lbomson Reuters. No Claim to Orig. US Gov. Works.
0426
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820 F.Supp. 1212, 1993-1 Trade Cases P 70,268
(Cite as: 820 F.Supp. 1212)
that Coudert failed to secure Kodak's infonned con-
sent to the adverse representation, the policy issues
triggered by this motion tip decidedly toward Kodak.
The court and the legal profession have a strong in
terest in insuring that counsel fulfill the highest duty
of loyalty to clients. While plaintiffs' argument that
multinational clients (such as Kodak) wtll often con-
sult international law finns (such as Coudert} on dis-
creet legal issues is well taken, plaintiffs have cited to
no California or Ninth Circuit authority creating an
exception to the rules about representation adverse to
an existing client because of these factors.
Whether a matter is international} multinational or
domestic, the standard of conduct for explanation of
material facts underlying a potential conflict of inter-
est is the same. The duty to the client of undivided
loyalty and necessity of infonned client consent to
adverse representation applies intentationally no mat-
ter how difficult the communication hurdles. Law is a
profession of service premised upon representation of
the client with the highest duty of loyalty and the
deepest regard for the trust of the client. Therefore,
policy requires the disqualification ofCoudert.
ORDER
For the foregoing reasons, and good cause appearing
therefrom, the court orders the following:
I. Defendant's motion to disqualify the Coudert Firm
is GRANTED.
2. The parties cross-motions for sanctions is DE-
NIED.
N.D.Cai.,J993.
Image Technical Services, Inc. v. Eastman Kodak
Co.
820 F.Supp. 1212,1993-1 TradeCasesP70,268
END OF DOCUMENT
0
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PROOF OF SERVICE
I, the undersigned, 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 the date set forth below, I served the within:
APPENDIX OF NON-CALIFORNIA AUTHORITIES IN SUPPORT OF CITY'S
MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL
on the following interested party(s) in this action:
Michael W. Stamp
Law Offices of Michael W. Stamp
4 79 Pacific Street, Suite One
Monterey, CA 93940
(831) 373.0242 FAX
VIA FACSIMILE- CCP I013(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 transmission(s) was reported completed
without error.
I declare under penalty of peljury that the foregoing is true and correct and of my personal
knowledge.
\1
Executed at San Francisco, California on November tii, 2009.
f)
b
99081.1 CA200.QI4
- I - PROOF OF SERVICE
prpro
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Ricbard c: Bolanos, Bar No. 111343

0
FILED
2. SuzanneSolomon,BarNo.169005
ssolomon@lcWicgal.com
HOV1728119
CONNIE MAZZEI
OI.ERK OF THe SUPERIOR COURT

3 UEBBRT CASSIDY WHITMORE
A Professional Law Corporation
4 !53 Townsend Slreel, Suite 520
San Francisco, CA 94107
S.HANS
5
6
Telephone:
FacSIIIIile:
(415) 512-3000
(415) 856-0306
7 Attorneys for Defendant
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CITYOFCARMEL-BY-TIIE-SBA
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
JANE KINGSLEY MILLER,
Plaintiff,
v.
CITY OF CARMEL-BY-THE-SEA and
DOES I through 100, inclw;ive,
Defendant.
CaseNo. M99513
ASSIGNED TO JUDGE LARRY E. HAYES,
DEPT. 4, SALINAS DWJSION
APPENDIX OF NON-CALIFORNIA
AUTHORITIES IN SUPPORT OF CITY'S
MOTION TO DIBQUAI.JFY PLAINTIFF'S
COUNSEL
Date: December 18, 2009
Time: 8:45 a.m.
Dept: 4
(Exempt from ftlmg fees pursuant to Cal.
Gov. Code 61031
Defendant City of Cannel-by-the-Sea hereby lodges the following Index ofNon-
CalifomiaAuthorities filed in support of its Supplemental BrlefiD Support of Motion to
Disqualil)r Plaintiff's counsel.
II
II
1. Hi/lebyv. FMC Corp. (N.D. Cal. 1992) 1992 WL455436.
APPENDIX OF NON-CAL AtrrllS. SUPPORTING MOTION TO DISQUAUPY PLAINTIFF'S COUNSEL
0429
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Richard C. Bolanos, Bar No. 111343
rbolanos6illcwlegal.com
Suzanne !olomon, Bar No. 169005
ssolomon@lcwlegal.com
LlliBBRT CASSIDY WHITMORE
A Professional Law Corporation
!53 Townsend Street, Suite 520
San Fnmcisco, CA 94107
Telephone; {415) 512-3000
Faesunlle: (415) 856-0306
Attorneys for Defendant
CITY OF CARMEL-BY-THE-SEA
0
FILED
NOV 1 7 2009
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
JANE KINGSLEY MILLER,
Plaintiff.
v.
CITY OF CARMEL-BY-THE-SEA and
DOES I through 100, inclusive,
Defendant.
Case No. M99513
ASSIGNED TO JUDGE LARRY E. HAYES,
DEPT. 4, SAUNAS D/YISION
SVPPLEMENTAL DECLARATION OF
HEIDI BURCH IN SVPPORT OF CITY'S
MOTION TO DISQUALIFY PLAINTIFF'S
COUNSEL
Dale: December 18, 2009
Time: 8:4.5 a.m.
Dept; 4
(Exempt trom llllug fees pursuant ro CaL
Gov. Code 61931 . .
I, Heidi Burch, do hereby declare the following;
I. I have been employed by Defendant City of Carmel-by-the-Sea since 200.5. My
current position is Assist1111t City Administrator/City Clerk. In that capacity, I have personal
knowledge ofthe taets set forth below. If called upon to do so, l would testilY competently to
such facts and the authenticity of such documents.
SUPP. BURCH DEC!.. SUPPORTING MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL
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Richard C. Bolanqs, BarNo. lll343
rbolanos@lcwlegliLcom
SIWUllle S"olomon, Bar No. 169005
ssolomon@Jcwlegal.com .
LIEBERT CASSIDY WHITMORE
A Professional Law Corporation
I 53 ToWIIBend Street, Suite 520
San Franclsco, CA 94107
Telephone:
Facsimile:
(415)512-3000
(415) 856-0306
Attome)'ll for Defendant
CITY OF CARMEL-BY-THE-SEA
0
FILED
NOV 19 2009
.
CLERK OF THE SUPERIOR COURT

SUPERIOR COURT OF THB STATE OF CALIFORNIA
COUNTY OF MONTI!REY
JANE KINGSLEY MILLER,
Plaintiff,
v.
CITY OF CARMELB Y-THE-SEA and
DOES I lhrough 100, inclUBive,
Defendant
Cass No. M99513
ASSJONED TOJUDOE LARRY E. HAYES,
DEPT. 4, SAUNAS DJVISJON
SUPPLEMENTAL DECLARATION OF
SUZANNE SOLOMON. IN SUPPORT OF
CITY'S MOTION TO DISQUALIFY
PLJ\INTIFF'S COUNSEL
Date: December 18, 2009
Time: 8:45 a.m.
Dopt: i:J
[Exempt from l!llag fees plll'sunot to Col.
Gov. Code 6103)
!, SI!ZilJlllc Solomon, hereby declare as fullows:
I. I am licensed to practice la,w before Ibis Court and I mn counsel for Defendant
City ofCIUlllel-by-!he-Sca ("City") in lhls IICtlon. 1 have pcrsonnlltnowledll" orlhe faotll set
forth in this declaration, and if called a a witness I would and could COITlpewntly thereto.
2. . After .tiling and serving this action on June 17,2009, Plaintiff served the Citywllh
form interrogatories and a request for production of documents on June 29,2009. The City
SUPP. SOLOMON OECL. SUPPORTlNO MOTION TO DISQUALIFY PLAINTIFP'S COUNSEL
0431
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Richard C. Bolanos, Bar No. 111343
rbolanos@lcwlegnl.com
Suzanne Solomon, Bar No. 169005
ssolamon@ lcwlegal.com
LIEBERT CASSIDY WHITMORE
A Professional Law Corporation
153 Townsend Street, Suite 520
San Francisco, CA 94107
Telephone; (415) 512-3000
Facsimile: ( 415) 856-0306
Attorneys for Defendnnt
CITY OF CARMEL-BY-THE-SEA
0
FILED
NOV172009
CONNIE MAZZEI
ClERK OF THE SUPERIOR COURT
- - - - ~ - - - - ~ - ~ ~ m Y
S.HANS
SUPmuQRCOURTOFTHESTATEOPCALWOrumA
COUNTY OF MONTEREY
JANE KINGSLEY MILLER,
Plaintiff,
v.
CITY OP CARMEL-BY THE-SEA and
DOES 1 through 100, inclusive,
Defendant.
Cose No. M99513
.ASSIGNED TO JUDGE LARRY E. HAYES,
DEPT. 4, SAUNAS DIVISION
DECLARATIONOFRICHARD C.
BOLANOS IN SUPPORT OF CITY'S
MOTION TO DISQUALIFY PLAINTIFF'S
COUNSEL
Date: December t 8, 2009
Time: 8:45 a.m.
Dept: 4
[Exempt from IDIDg fees pursuant to Cal.
Gov. Code 6103]
I, Richerd C. Bolanos, hereby declare as follows:
t. I am Ucensed to practice law before this Court and I am counsel for Defendant
City of Cormel-by-tbe-Sea ("City'') in this action. I make this declaration based on personal
knowledge and on review of documents kept at Liebert Cassidy Whitmore in the ordinary courne
of business, and lf cnlled as a witness I would and could competently testify thereto.
BOLANOS DECL. SUPPORTING MOI'ION TO DJSQUALIPY PLAINTIFF'S COUNSEL ---i
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Richard C. BoliiOOS, Bar No. I 11343
rbolanos(O}Icwlegal.com
Suzanne Solomon, Bar No. !69005
ssolomon@lcwlegal.com
LIEBERT CASSIDY WHITMORE
A Professional Law Corporation
153 Townsend Street, Suite 520
San Francisco, CA 94107
Telephone: (415}512-3000
FacSimile: (415} 856-0306
Attorneys for Defendant
CITY OF CARMEL-BY-THE-SEA
0
FILED
NOV f 7 2009
CONNIE MAZZEI
THE SlJPEAIOO COIJIT .
"'oj)EPU1Y
S.HANS
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
JANE KINGSLEY MILLER.
Plaintiff,
v.
CITY OF CARMEL-BY-THE-SEA and
DOES I through l 00, inclusive,
Defendant.
case No. M99513
ASSIGNED TO JUDGE LARRY E. HAYES,
DEPT. 4, SALINAS D!VlSION
SUPPLEMENTAL DECLARATION OF
RICH GUILLEN IN SUPPORT OF CITY'S
MOTION TO DISQUALIFY PLAINTIFF'S
COUNSEL
Date: December 18, 2009
Time: 8:45 a.m.
Dept: 4
!Exempt from filing fees pursuant to CaL
Gov. Code 61031
I, Rich Guillen. do hereby declare the following:
1. I have been employed by Defendant City of Carmel-by-the-Sea since October
2000. From October 2000 to December 2000, 1 served as the Interim City Administrator. On
January I, 2001, I became the City Adminislmtor, which is my current position. In that capacity,
'
I have personal knowledge of the facts set forth below, or have obtained sucb knowledge through
a review of true and correct copies of documents in the City's files with which I am familiar. If
----------
SUPP. QUILLEN DECL. SUPPORTING MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL
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Richard C. Bolanos, Bar No. 111343
rbolanos@lcwlegalcom
SuzallllC Solomon, Bar No. 169005
ssolomon@lcwlegaLcom
GraceY. Chan, BarNo. 240899
gchan@lcwlegal.com
LIEBERT CASSIDY WHITMORE
A Professional Law Corporation
153 To\\ID8end Street, Suite 520
San Fnmcisco, CA 94107
(415) 512-3000
Facs1mile: (415) 856-0306
Attomo}'ll for Defendant
CITY OF CARMEL-BY-THihSEA
0
FILED
NOV I 7 211119
CONNIE MAZZ.8
. Cl.S!K OF THE SUf>ERfoR COURT
DPl11Y
S.HANS
SUPIDUORCOURTOFTHESTATEOFCALWOrumA
COUNTY OF MONTEREY
MONTEREY DNISION
JANE KINGSLEY MILLER,
Plaintiff,
v.
CITY OF CARMEL-BY -THE-SEA and
DOES 1 through 100, inclusive,
Defendant
Case No. M99513
ASSIGNED TO JUDGE LliRRl' E. HAYES,
DEPT. 4, SALINAS DJVISlON
CITY'S REPLY TO PLAINTIFF'S
SUPPLEMENTAL OPPOSITION ON
ISSUE OF SUBSTANTIAL
RELATIONSHIP TEST REGARDING
CITY'S MOTION TO DISQUALIFY
PLAINTIFF'S COUNSEL
Date:
Time:
Dept:
December 18, 2009
8:45a.m.
4
[Exempt from filing fees pursuant to Cal.
Gov. Code 6103)
I. INTRODUCTION
The City hereby submits this short reply brief responding to Plaintiff's November 9, 2009
brief on the issue of whether tho City bu met the "substantial relationship" test.
CrrY'S REPLY TO PLTF'S SUPP. OPPO. ON SUBSTANTIALRBLAT!ONSHJP TEST
u
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Richard C. Bolanos, Bar No. 111343
rbolanoo@lcwlega.l.com
SIIZ8Ill1e Solomon, Bar No. 169005
saolomon@lcwlegal.com .
GraceY. Chan, Bar No. 240899
gcban@lcwlegal.com
LIEBERT CASSIDY WHITMORE
A Professional Law Corporation
153 Townsend Street, Suite 520
San Francisco, CA 94107
Telephone: (415) 5123000
Fa<:Silllile: (415) 856-0306
Attorneys for Defendant
CITY OF CARMEL-BY-THE-SEA
0
FILED
NOV1'72009
CONME MAZZEI
CLERK OF THE SUPERIOR COURf
- - - - - - - - - ~
S.HANS '
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
JANE KINGSLEY MILLER,
Plaintiff,
v.
CITY OF CARMEL-BY THE-SEA and
DOES I through 100, inclusive,
Defendant.
CaseNo. M99513
A88IGNED TO JUDGE LARRY E. HAYES,
DEPT. 4, SAUNAS DIYIS!ON
CITY OF CARMEL-BY-THE-SEA'S
SUPPLEMENTAL BRIEF ON ISSUE OF
LACHES IN SUPPORT OF CITY'S
MOTION TO DISQUALIFY PLAINTIFF'S
COUNSEL
Date:
Time:
Dept;
December 18, 2009
8:45a.m.
4
(Exempt from filing fees pursuant to Cal.
Gov. Code 6103}
CJTY'S SUPP. BRIEl' ON LACH!8 ISSU! IN SUPP. OF MOT. TO DlSQUAIJFY PLAINI'll'FS COUNSEL
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From. 8313730242 Page 1129 Date: 121412009 5.15:43 PM
1 Michael W. Stamp, State Bar No. 7278;;;
Molly E. Erickson, State Bar No. 253198
2 LAW OFFICES OF MICHAEL W STAMP
479 Pacific Street, Suite One
3 Monterey, California 93940
Telephone: (831) 373-1214
4 Facsimile: (831) 373-0242
5 . Attorneys for Plaintiff
6
Jane Kingsley Miller
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
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JANE KINGSLEY MILLER,
Plaintiff,
v.
CITY OF CARMEL-BY-THE-SEA, and
13 DOES 1 through 100,
14 Defendants.
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Case No. M99513
Complaint filed June 17, 2009
Date: December 18, 2009
Time: 8:45 a.m.
Dept.: 4 (Hon. Larry E. Hayes}
19 PLAINTIFF'S CLOSING MEMORANDUM OF POINTS AND AUTHORITIES
20 IN REPLY TO CITY'S BRIEFING
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MILLER v. crrv OF
CASE No. M99513
CLOSING MEMORANOUM OF POINTS o\ND
IN REPL VTO CITY'S BRlEFING
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From: 8313730242 Page: '2J29 Date. 1'2J412009 515:43 PM
TABLE OF CONTENTS
I. THE CITY FAILED TO MEET ITS BURDEN OF PROVING A
3 DISQUALIFYING CONFLICT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
4
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.6
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A.
B.
C.
The City's Showing- the Burch Declaration .......... . ...... 1
The City's Motion to Disqualify is Strategic- the City Seeks to
Avoid a Result in Litigation That Is Not "Positive for the City,"
Not Because There Is Any Material Conflict . . . . . . . . . . . . . . . . . . . . 4
The City's Evolving Stories on the Six-Year Delay Are Not Credible .... 5
8 II. THE CITY IS BARRED FROM ASSERTING ITS CLAIM UNDER
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EQUITABLE PRINCIPLES OF DELAY AND EXTREME PREJUDICE....... 8
A. The City Delayed Six Years ................................. 8
B. Disqualification Would Cause Extreme Prejudice to Ms. Miller . . . . . . . 1 0
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... , . . . . . . . . . . . . . 13
MILLER V CITY OF CAAMI!lBYTHE:-sEA
, CAsE No. M99S13
ClOSING MEMORANCUM OF' POINT$ AND AUTHORillE$
IN REPL 'fTD CITY'S flRIEFING
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From 8313730242 Page: 3129 Date 121412009 5:15:43 PM
TABLE OF AUTHORITIES
Farris v. Fiffilman's Funa Insurance Company (2004) 119 Cai.App.4th 671 . . . . . . . . . 3
3
Faughn v. Perez (2006) 145 Cai.App.4th 592 . . . . . . . . . . . . . . . . . . . . . . .... 3, 4
4
Hr11eby v. FMC Corp (ND Cal., 1992) 1992 U.S. Dist. LEXIS 20835 .............. 9
5
Image Technical Services v. Eastman Kodak
6 (N.D. Cal., 1993) 820 F. Supp. 1212 ...................................... 9
7 River West, Inc. v. Nickel (1987) 188 Cai.App.3d 1297 ........................ 9 ,
8 Santa Teffilsa Citizen Action Group v. City of San Jose
(2003) 114 Cai.App.4th 689 ......................................... 12
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ZadorCorporation v. Kwan (1995) 31 Ca1App.4th 1285 ................ 5, B, 9, 10
Mlu.ER v. CrTY OF CARMEL-B'I'-rnE.SEA
CASE No. 11199513
ii
CLOSING ME:IIIMANDUM OF POiNT$ ANO AuTHORITIES
IN REF'l'!' TO Cnv's B ~ I E F I N G
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From 8313730242 Page 4129 Date: 1214/2009 5:15:43 PM
1 This memorandum responds to the City's November 17, 2009 briefing on the
2 City's claims of conflict and on the City's delay. The City has not met its evidentiary
3 burden on either issue, and the motion for disqualification should be denied,
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I.
THE CITY FAILED TO MEET ITS BURDEN OF
PROVING A DISQUALIFYING CONFLICT
The City's Showing - the Burch Declaration.
In filing this motion on September 1, 2009, the City stated under .penalty of
that City Clerk Heidi Burch had accurately summarized the records that the City
was relying upon for its claim of a substantial relationship between a former
10
11
12
13
representation of the City and the Jane Miller case. The Burch declaration was the
factual basis for the City's motion.
In the opposition filed October 8, 2009, Plaintiff Miller showed that Burch's
declaration was not admissible because there was an insufficient foundation for any
14
opinion. On October 23, 2009, this Court agreed, and ordered the City to produce the
15
underlying documents for in camera review.
16
On October 30, 2009, this Court stated that it had reviewed 106 pages of City
17
records, and had tentatively regarded the CH:y documents as showing such a
18
substantial relationship. Because Miller's counsel had not even seen the City
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documents, much less submitted any response, the Court's "tentative" view was
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particularly tentative.
On November 9, 2009, Millers counsel got his first opportunity to address in any
way the 106 City pages. At that time, Miller's counsel demonstrated that Burch's
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declaration supposedly summarizing the documents was materially false, stretched and
24
exaggerated the truth, and grossly mischaracterized documents In an effort to fit them
25
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into the City's contention that there was an actual conflict wrth the Miller case.
In the City's most recent response filed November 17, the City makes no effort to
correct the record, explain the Burch missteps, or show that the City did not in fact
28
intend to mislead the Court and opposing counsel. (City's Reply on Substantial
1
MILLER V. CARME1.9Y-THE-SEA
CASE No. M99513
MEM<JRiiNOIJI'A 01' POINTS liND AlrTHOI<rtiES
IN RS'l Y TO CITY'S BRIEFJNG
0439
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From. 8313730242 Page 5129 Date: 12/4120095.15:43 PM
1 Relationship, filed November 17, 2009.) In its memorandum, the City abandons
2 Burch's claims about the substantial relationship of former matters, and instead argues
3 about (1) a 1989 harassment policy that ML Stamp reviewed in 1991, and which has
4 been completely rewritten by the City since then, and (2) a 1992 sexual harassment
5 claim not addressed in the original Burch declaration or in the City's motion.
6 The City repeatedly suggests in its most recent briefing that the 1989 policy
7 reviewed by Stamp in 1991 is the current policy that affects Jane Miller. The City's
8 carefully worded argument is, at best, misleading. Attached as Exhibit A to this
9 Memorandum of Points and Authorities is a copy of the harassment policy in its 2008
10 form, showing the sweeping changes that have been made to the 1989 policy by the
11 City since then. There is no substantial relationship under the law between a 1991
12 review of a former policy and a 2009 claim under a different policy that has been
13 comprehensively rewritten by the City.
14 The 1992 sexual harassment claim now heavily reUed upon by the City erose 17
15 years ago under a temporary Acting City Administrator, was factually investigated by
16 the City, and resolved at the time. None of the decision makers from that brief episode
17 has been employed by the City tor years, and the policy upon which the claim was
18 based is a materially different City policy than the one applicable to Jane Miller. The
19 claim itself was made in response to a personnel evaluation of a non-senior, non-
20 management employee who did not wort< at City Hall. The claim focused upon what the
21 claimant said that she observed being done or said by other co-wooers (the most
22 sensational of which was later withdrawn). (Stamp Dec!., filed under seal, dated
23 December 4, 2009.113.) The only confidential information relating to that case was in
24 the particular facts of the employees' actions.
25 The City never identifies how the City's strategy or efforts 17 years ago in that
26 factual situation is in any way material to the current representation,
1
The City
27
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1
The City hints at the idea that the 1989 haras:;ment policy ana the 1992
harassment claim are like a "playbook" of the City's defense strategies, The Court in
2
MIW!F< V. CrTY OF CAAUEl.-eY-THE-SEA
CASE No. M99513
CLOSING MEMOilANOUf'i, OF PoiNTS AND AlJTliORmES
lN REPLY ro Cm's BRieFING
0440
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From 8313730242 Page 6129 Date: 12/412009 5 15:43 PM
1 apparently has destroyed the remaining file associated with that claim, and has given
2 the Court no infonnation about the context or the actual circumstances of the
3 representation. The City's showing is based upon a few documents that the City claims
4 to have located only within the past month, well after the current motion was filed and
5 briefed by all parties. The City's showing does not meet the substantial evidence
6 requirement for disqualification of counsel. (Faughn v. Perez (2006) 145 Gai.App.4th
7 592, 609 [without evidence to connect the facts of the current representation to the
8 fonner representation, court will not infer it exists].}
9 Also missing from the City's brief is anything other than the most superficial
10 statement of the applicable law. Proving a substantial relationship requires showing
11 that the confidential infonnation from the former matter is "material" - that i1 is directly at
12 issue in, or has some critical importance to the current representation. (Ferris v.
13 Fireman's Fund insurance Company (2004) 119 Cai.App.4th 671, 680.) The purpose of
14 disqualification is to prevent the use of the former client's confidences (obtained
15 through the former representation) to the fanner client's detriment in the CUITent
16 representation.
17 The confidential aspect of the substantial relationship test is the key to lhis case.
18 The City's brief avoids even mentioning the test, because the law requires a deep
19 factual inquiry and a solid, well-supported showing of the danger that confidential
20 information adverse to former clients is at stake.
21
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[S]uccessive 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 fonner
representation given its factual and legal issues is !i!ISO
material to the evaluation, prosecution. settlement or
27 Faughn v. Perez (2006) 145 Cai.App.4th 592,609-810, considered such an argument,
and rejected it on a much stronger record than the City presents here. In its decision,
28 the Court stressed the importance of direct evidence of an actual, current conflict.
{Ibid.)
;;
MoLLER v. CrTY oF .. ,.NO=Ai.ITHORITIES
CAse No. M99513 IN REPLY TO Cm'$ BRIE.l'ING
0441
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From 8313730242 Page 7/29 Date. 121412009 5.15:44 PM
accomplishment of the current representation given it$
factual and legal issues.
3 (Faughn v. Perez, supra, 145 Cai.App.4th 592, 604-605, underlining added for
4 emphasis.) A "substantial relationship" sufficient to disqualify counsel requires that
5 there be a "substantial risk that the present representation will involve the use of
6 confidential infonnation aequired in the course of the prior representation." (/d., at p.
7 605.) The 1989 policy reviewed by Stamp in 1991 Is not a current policy, and is
6 immaterial to the Miller case. The fact-based claim of a worker in 1992 is similarly
g immaterial as a matter of law. (See Faughn v. Perez, supra, 145 Cai.App.4th 592,
10 609).
11 B.
12
13 For the past three months, Jane Miller has been asserting that the City's
14 disqualification motion is tactical, not substantial. Ms. Miller has focused on how the
15 City did not object in any way at any time during a six year period when Mr. Stamp
16 represented four separate senior City employees in similar claims against the City, did
17 not object in any way for 16 months when Mr. Stamp represented Ms. Miller, and only
16
1
objected by filing the motion to disqualify after the Complaint was filed, interrogatories
19 were answered, documents were due to be produced, more than $150,000 In fees were
. 20 incurred. the first deposition was taken and was unfavorable to the City, and the case
21 started moving to trial.
22 Plaintiff has shown through a detailed review of the evidence that there is no real
23 conflict. She has asserted that the 2003-2008 representations were on cases nearly
24 identical to the current one. and that the City did not raise any objections because the
25 City did not have anv basis ford isgualificatioo. and could not justify one under the law.
26 She also has focused on the extraordinary delay, the extreme harm to Ms. Miller, and
27 the City's waiver of its claim that there is a conflict.
28 The key piece of evldence on this issue has now surfaced: City Administrator
MILLER V.
CASE NO. M99513
4
CLOSING MEMORANDUM OF POINTS AND AulHO!UfiES
IN REPLY TO C1TYS BFIII!FING
0442
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From: 8313730242 Page 8129 Date: 121412009 5.15 44 PM
1 Guillen has now admitted under penalty of that the City voluntarily chose to
2 accept the representations by Stamp of four senior employees from 2003 to 2006
3 because Stamp's representation was "facilitating a result that was positive for the City."
4 (Gui'len Decl., p. 2:12-13, 2:2()..21-) Stated slightly differently, Mr. Guillen admitted that
5 "I viewed Mr. Stamp's involvement as beneficial for the City, because he was facilitating
6 early retirements that were saving the City in personnel costs. (Ibid.) In other words,
7 so long as the City viewed Stamp as saving money (short tarm payouts as opposed to
8 larger long term retirement payments}, no one at the City cared about any claims of
9 former representation or conflicts or history. And when Jane Miller filed suit,
10 propounded discovery, and started moving the case to trial, !he City changed its mind
11 and started looking for ways to disqualify Plaintiffs counsel.
12 The appellate courts frequently warn the trial courts that motions for
13 disqualification are disfavored, and that it "is widely understood by judges that attorneys
14 now commonly use disqualification for purely strategic purposes , ... " (Zador
15 Corporetlon v, Kwan {1995) 31 Cai.App.4th 1285, 1302-1303 [Sixth District case
16 reversing order for disqualmcation).} The City's neN>I admission is that the City saw no
11 conflict about Stamp's role so long as the City was getting something it wanted. That is
18 a compelling basis for the Court to conclude that there is no real conflict.
19
20
The City's Evplving StQ!ies on the Six-Year Delay Are Not Credible.
The City's story on the delay has not been credible at any point on this motion.
21 The chronology goes !ike this. When filing the disqualification motion on September 1.
22 2009, the City did not address the issue of delay at all.
23 When Miller raised the claim in her opposition filed October 8, 2009. the City
24 responded by (1) making a frivolous claim that the City "could not have moved to
25 disqualify'' counsel because there was no pending litigation until June 2009 (City's
26 Reply Brief, October 15, 2009, p. 10, lines 5-9); and (2) supporting that claim only with a
27 misleading and deceptive editing of the authorities relied upon by the City, editing out
28 the meaning of the quote in order to reverse the meaning of the case law.
MiLLeR v. Cm' oF CARMEL-ElY-THt-SEA
CASe No, M99513
5
CLOSING MEMORANOUM or PotN'TS AND AUTliORmes
ill TO CiTY'S BRIEFlNG
0443
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From 8313730242 Page: 9129 Date: 12/412009 5'15:44 PM
1 Because that claim by the City was mentless, the City then tried to claim that the
2 2003 to 2008 representation of four senior City employees by Mr. Stamp did not involve
3 claims by the employees, or that the City offered the employees a "golden handshake'
4 or that the employees hired Stamp because of the complicated PERS issues, Miller
5 demonstrated tl1at the City was not telling the truth, that t11e employees raised claims of
6 a 'hostile' work environment and of gender-based discrimination, as well as c:laims of
7 forced retirement, and that t11e emails relied upon by Guillen as proof did not say what
8 Guillen claimed. (Plaintiffs Evidentiary Objections 1 and 2, filed October 22, 2009,
9 pending,)
1 0 Then, after the Court expressed its tentative ruling on the delay on October 30,
11 t11e City created a new spin, Although t11e City Administrator knew of Stamp's earlier
12 representation of the City while he was the City Administrator, Guillen never asked for
13 "any details' about the matter, so, t11e story goes. he had no knowledge of the details.
14 He had no inkling" of the now-alleged conflict. (City's Brief, November 17,2009, p. 1,
15 line 8.) And although he negotiated four claims and settlement with Stamp between
16 2003 and 2008, he has "no legal training," so he did not know that he could claim that
17 there was a conflict. (Guillen DecL, p, 2, 1f2,) There were no City employees with first-
18 hand knowledge, (City's Brief, p. 2, lines 17-18)
19 The City's story has serious problems. First, the City Attorney, City
20 Administrator, City CounciL and Mayor all koew of the representations of the four
21 employees from 2003 to 2008. Second, the City Administrator's alleged lack of
22 communication with Mr. Bolanos means notl1ing; the outside fimn was on retainer and
23 available, Mr. Bolanos's law partner worked closely with the City and had been the
24 City's personnel counsel for years, The City's choice to not inquire about the issue is
25 not an excuse. Third, the City never even mentions that it has a City Attorney, Don
26 Freeman, who also was available to the City Administrator for consultation at all times,
27 The City Attorney knew of all of the representations, knew Stamp well, knew about
28 Stamp's representation of tl1e City, and even signed off (with Stamp) on two of the
MILLER V. CITY OF
CAS!! No, M99513
6
ClOSING MEMORANDUM OF POINTS ANO Autl<lRmES
IN REPLY TO CITY'S BRlEFING
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1 settlements with Stamp's clients. It is a fair Inference that the City Attorney did not
2 believe there was any conflict. because the City Attorney did not even contact Stamp
3 with any issue of conflict.
4 Mr. Guillen's statement that he has no legal training" is not truthful: Mr.
5 Guillen attended law school for two years, speaks frequently about his experience
6 there, and claims to have a continuing interest irJ all things legaL (Stamp Decl., 1!3.)
7 He also has a great deal of familiarity in public agency litigation, including direct
B involvement in extensive personnel litigation with Liebert Cassidy while Guillen worked
9 as a top official in the City of Seaside Ci1y Manager's OffiCe. Guillen's legal training
10 comes from law school, direct professional managerial involvement in two different
11 cities, and on the job training as the City's lop professional administrator. (Stamp Decl.,
12 filed December 4, 2009,1n[2-4.)
13 Amongst the hundreds of pages of this evolving story by the City, the Guillen
14 Declaration finally admits the truth of the story: Guj!!en did not object to Stamp's
15 representation of the four senior City for strategic reasons: "I viewed
16 Mr. Stamp's involvement as bf/111!!!ficial for tbe Citv because he was facilitating early
17 retirements that were saving !IJe City in personnel costs: In short, he made no Inquiry
18 because he was saving money in the long term by having City employees take early
19 retirements."
20 The City never makes an effort to explain the acquiescence by the City Attomey,
21 Mayor, City Council and City Staff in the six years of representation. Mr. Guillf/111's claim
22 of ignorance of the law says volumes about the insufficiency of the City's showing and
23 the lack of credibility.
24 The City admits that its current lawyers had actual knowledge in December 2008
25 (Bolanos Decl., 114) of the former representation and the current representation.
26 Nevertheless, the City (1} did not raise any issue with Stamp or seek any information
. 27 from Stamp or from the City records, (2) did not search for records, (3) did not meet and
28 confer, and (4) did not ever mention the issue.
V. C!'TYOF
CA$1; Nc M99513
7
ClOSING MEII!O!!ANOUM OF POINTS ANO AUTHORIT!Ell
IN R!iPI. Y TO CITY'S BRIEFING
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From: 8313730242 Page: 11129 Date 121412009 5:15.44 PM
1 The City also claims in another misleading statement that "after [Mr. Bolanos]
2 sent the February 9, 2009 Notice of Completion to Mr. Stamp, the City considered the
3 matter of Plaintiffs allegations ... to be closed." (Bolanos Dec!., 'U 7.) The claim is not
4 believable. Letters from Mr. Stamp to Mr. Bolanos after February 9 consistently show
5 that Ms. Miller's matter was not "closed." (Stamp Decl., W10-14 [Stamp letters of
6 February 19, 2009 (Ms. Miller "will take the appropriate steps to protect her lights");
7 April17, 2009 ("the purpose of this letter is to ... present the City and Mr. Guillen with
8 an opportunity to consider settling Ms. Miller's claims'); and May 5, 2009 ("If the City
9 wants to discuss a settlement that would compensate Ms. Miller for all her losses, you
10 should contact me promptly" and "Ms. Miller has not changed the position that she
11 advanced to the City neany a year ago")].) The City had no reasonable basis to
12 consider the matter "closed."
13 II.
14 THE CITY IS BARRED FROM ASSERTING ITS CLAIM UNDER
15
16
17
18
19
20
21
22
EQUITABLE PRINCIPLES OF DELAY AND EXTREME PREJUDICE.
The Citv Delaved Six Years.
As the Sixth District Court of Appeal held in Zador Corporetion v. Kwan, supra,
31 Cai.App.4th 1285, 1302-1303:
[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.
23 (Internal citations and quotation marks omitted.)
24
In Zador, the disqualification motion was filed shortly after the litigation
25
commenced. However, the Court, in assessing the prejudice, focused on how long the
2
6 moving party knew that litigation was reasonably possible, and how long the moving
27 party knew the Identity of the attorney prosecuting a claim against the former client. (31
28
Cai.App.4th at 1302.) The Court found that the possibility of litigation was evident
MILLER V. CITY OF CARMEL-YTHE-SEA
CAsE No. M99513
8
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1 nearly three years before the motion to disqualify was filed. (Ibid.) The Sixth District
2 reversed the trial court's order disqualifying counsel. (/d. at pp. 1302-1303.)
3 The City correctly identifies River West as a case that permits Plaintiff to raise
4 the City's undue delay as a basis for this Court to deny the motion to disqualify. (City's
5 Supplemental Brief on Issue of Laches, pp. 4-5.) The City cites to several cases that
6 affirm the River West rule (id., pp. 5-6), and the City also cites two older trial court
7 decisions (Hilleby v. FMC Corp (N.D. Cal., 1992) 1992 U.S. Dist: LEXIS 20835(patent
8 case not reported in the official reporter] and Image Technical Services v. Eastman
9 Kodak (N.D. Cal., 1993) 820 F. Supp. 1212 [short delay in international concurrent
10 representation easel) that are well off the mark: here, and are neither current nor
11 controlling. City devotes only two sentences of its 14-page brief to the sole Sixth District
12 case on point: ZadorCorporation v. Kwan, supra, 31 GaLApp.4th 1285, 1302.
13 Starting in May 2008, Ms. Miller invested her time, financial resources, and
14 energy into asserting claims with the attorney of her choice, knowing that the City had
15 not objected to Stamp's similar representation of similarly situated employees over the
16 preceding five years. The City's behavior over those fJVe years lulled Ms. Miller into
17 thinking that Stamp was an attorney she could select without any objection by the City,
18 based on her personal knowiedge of the events of 2003 to 2008. (See Miller Decl., '1m
19 1-3.) In May 2008, she carefully selected Stamp as her attorney, and carefully
20 considered whether to prosecute this litigation. (Miller Oecl., 111 5.-8.) In July 2008, the
21 City was provided with Ms. Milte(s DFEH "right-to-sue letters, which are precursors to
22 litigation. Still, the City did not object to Stamp's representation of Ms. Miller.
23 The City failed to timely assert its claim and is not entitled to equitable relief on
24 its disqualification motion. The City impliedly waived any claim of conflict (River West,
25 Inc. v. Nickel(1987) 188 Cai.App.3d 1297).
26 The disqualification motion also should be denied under the doctrine of unclean
27 hands and laches. Motions to disqualify counsel are often used as a litigation tactic to
28 "harass opposing counsel ... or to Intimidate an adversary into accepting settlement on
MILLER v. CITY OF
CASE NO. M99513
9
CLOSING MEMORANDUM OF POIN"!'S ANO AIJTHORirii!S
IN REPLY TO CITY'S BRIEFING
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1 terms that would not otherwise be acceptable." (Zador Corp. v. Kwan, supra, 31
2 Cai.AppAth 1285, 1303.) The City did not undertake a reasoned inquiry of the issues,
3 or present first-hand knowledge of its own former city administrators, or review the
4 circumstances of the years of forced retirement claims made by Stamp's private clients.
5 Under equitable principles, the City is estopped from raising a claim of conflict now.
6 B.
7
Disaualjfica1ion Would Cause Extreme PrejudLqg_tQ Ms. Miller.
Jane Miller would be extremely prejudiced in several ways if this motion were
8 granted. First, Ms. Miller would be deprived of highly skilled counsel whom she sought
9 out for his expertise In discrimination and forced retirement claims by public agency
10 officials. There are few equally skilled attorneys in this field in Monterey County, and
11 none who would be available. (See Welsh Decl., 1!113-9; Miller Decl.,1j20; Stamp
12 Decl .. W 85-89. all filed October 8, 2009.)
13 Second, Stamp has been working on this matter for sixteen months, providing
14 advice, working with his client and other consultants and professionals, developing the
15 strategy for this case, and preparing the case for litigation. As a result of more 1han 200
16 attorney hours and over 240 staff hours of work on this case, the case moved forward
17 efficiently, {stamp Dec!., filed October 8, 2009, 1J79.) New counsel- if one could be
18 obtained- would take many months to get up to speed. {stamp Dec!., 'In! 86-87, flied
19 October 8, 2009.)
20 Third, it is highly unlikely that other counsel in the area would take over the case
21 at this point. Miller would have to go to the Bay Area to find equally qualified counsel
22 who might be available, but only at a prohibitive financial and emotional cost. (Stamp
23 Decl.. W 8 6 ~ 8 7 ; Welsh Dec! , 'I 9, filed October 8, 2009.) It is likely that if Stamp is
24 disqualified, Miller would not be able to pursue her claims against the City. (Miller Oecl.,
25 filed October 8, 2009, W 18-20; Welsh Dect, W 5, 9; Stamp Dec!., filed October 8,
26 2009, 1J90.)
27 Fourth, since May 2008, Ms. Miller has spent many hours working with her
28 attorney, reviewing emails to her from Guillen, preparing a chronology of events. and
MILLER v. CITY OF CARMI'L BY-THE-SEA
CASE No. M99513
10
CLOSING MEMoRANDUM OF POINTS AND AlJlliORrTIE;S
IN REPI..Y 10 CITY'$ BRIEfiNG
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1 otherwise documenting the behavior of Guillen toward her. (Miller Decl., 5, Stamp
2 Decl., 'IJ17-18a.) Every one of these efforts has caused Ms. Miller to suffer additional
3 harm because she has had to re-experience and re-live the trauma each time. (Wright
4 Dec1.. 14.) Ms. Miller has paid Stamp thousands of dollars from her retirement funds,
5 and Stamp has provided a great deal of work to Ms. Miller at no charge (Miller Decl., 1m
6 5-6). Over the 18 months Ms. Miller has worked with Stamp, she has developed a
7 trusting and tmstworthy attorney-client relationship. (Wright Decl., 13; Miller Decl.,
8
9 As stated by Dr. Deborah Wright, Plaintiff's treating psychologist. if Stamp is
10 disqualified, it is unlikely that Ms. Miller would have the energy or stamina to find or
11 select a new attorney. Going out and finding new counsel would present an almost
12 insurmountable challenge to Ms. MiUer. (Wright Decl.,1f14.) A forced change of
13 counsel would be costly and emotionally devastating to her. (Miller Dect., 1J6.) Even if
14 she could find new counsel, Ms. Miller would find it very difficult to assist a new attorney
15 in the same way she has assisted Stamp. Going over the same painful events yet
16 another time, both to seek new counsel and to assist them, Is likely to be more than she
17 can (Wright Decl., 'IJ14.)
18 Ms. Miller also has been seriously harmed by the filing of the City's motion, as
19 well as by the months of delay it has caused in the prosecution of her claims. (Wright
20 Decl., '111112, 14-21.) As a result, her diagnosis has become more severe, her physical
21 health has suffered, and she has suffered extreme stress. (Ibid.) A disqualification at
22 this late date would likely cause very significant and serious emotional harm to Ms.
23 Miller. (Wright Decl., mf12. 14-21.)
24 Ms. Miller is very dedicated to t>er work, which is a large part of her identity. Ms.
25 Miller feels that, unlike other employees who suffered due to Mr. Guillen's behavior, she
26 was In a position to stand up and try to stop him, and prevent others from suffering in
27
28
2
All citations to the Miller and Stamp declarations from here forward are to the
declarations filed concurrently with this memorandum.
Mlu..ER v. CITY OF CARMEL-BY THE-SEA
CAS!i No. M99513
11
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JN REPI.VTOCnYS BRIEFING
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1 the future. (Wright Decl., 'II 11.) As a result of Mr. Guillen's behavior, she has been
2 unable to end her career in a positive way. which has left her with a great deal of grief
3 and disappointment. (Wright Decl., 1]1 0.)
4 Under the circumstances and the competent evidence, there is no question that
5 the disqualification of Stamp would cause extreme prejudice to Ms. Miller. The City's
6 approach is to suggest that Ms. Miller can find another attorney. That is not a realistic
7 scenario, as the declaration of Dr. Wright makes clear. This is not a fungible matter. It
8 is not a commodity. It is a highly complex and highly personal case. It involves a raal
9 vulnerable plaintiff, who has suffered deeply and continues to suffer at the continued
10 delay in resolution of the City's motion, based as it is on changing claims, incompetent
11 and mischaracterized evidence, and a story that is not credible.
12 The extreme prejudice also would include significant harm to Stamp who has
13 spent more than 200 hours of his time and 240 hours of his associate attorney and staff
14 time, in addition to thousands of dollars in litigation eKpenses. Those do not include the
15 high cost of opposing this motion, and the many other matters that his Office has turned
16 down due to the time necessary to devote to Ms. Miller's case. (Stamp Deci..1M!
17 19-21.)
18 The cases that address the impact of delay in disqualification motions do not
19 define "extreme prejudice." and one case {Santa Citizen Action Group v. City of
20 San Jose (2003) 114 Cai.App.4th 689) uses the term substantial prejudice." also
21 without defining it. As the cases cited even by the City make clear, the determination of
22 extreme prejudice cause by delay is based on the facts and evidence before the Court,
23 and the Court is empowered to exerc1se its discretion in determining that the degree of
24 prejudice to Plaintiff and her attorney are extreme under the facts and circumstances of
25 this case.
26 And what would be gained from disqualification? Allowing Stamp to continue
27 representing Jane Miller would not result in the use or disclosure of confidential
28 information. Nor would It disadvantage the City. The only result that would come from
Mu_LER v Cn:y OF CARMEL.-eY-n<E.SEA
CASE No. M995 13
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IN REPLY TO CITY'S BRIEfiNG
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1 a disqualification would be to stop the prosecution of potentially valid discrimination
2 claims, and impose ex1reme harm to Plaintiff and to her efforts to secure justice in this
3 most important matter.
4 CONCLUSION
5 For the reasons stated above and in the briefing on this motion, and in the
6 interests of justice. the motion to disqualify should be denied.
7
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Dated: December 4, 2009
M.ILI.ER v, CITY OF CARMEL-BY-THE..SEA
CASE No. M99513
LAW OFFICES OF MICHAEL W. STAMP
0 ~
Michael W. Stamp
Attorneys for Plaintiff, Jane Kingsley M ~ l e r
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EXHIBIT A
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CITY OF CARMEL-BY-THE-SEA
CITY POUCY NO. C93-02
HARASSMENT PROHffiiTED
cvv-rt>M" vevSiM
'\'O'bf- I 'l'f I
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City or Carmel-by-the-Sea
City Policy No. C93-02
Harassment Prohibited
Purpose
The policy of the City of Carmel-by-the-Sea is that harassment in any fOilll in the
workplace is unacceptable and will not be condoned or tolerated. The purposes of this
Policy are to provide working conditions free of any form of harassment; to establish a
procedure by which individuals who feel they have been harassed in any manner can
bring their complaint{s) to an appropriate authority without rear of retaliation; to
establish a procedure by which complaints of harassment are promptly, thoroughly and
fairly investigated; and to insure that individuals who are found to have violated this
policy wfll be subjected to disciplinary action that is commensnrate with the severity of
the offense.
Policy
The City of Cannel-by-the-Sea any form of harassment and will not tolerate,
condone or tril'ialize suclt actions by any employee, regarrlless of employment statru.
Additionally, such conduct is a violation of federal and state laws. Employees, appli-
cants for employment, and others are to be free from harassment on the basis of race,
religion, color, national origin, ancestry, handicap, disability, medical condition,
marital status, sexual orientation, sell:, pregnancy, age, or for asserting family care
leave rights.
All employees who llllttate or participate in the investigation of a complaint are
protected from retaliation from any employee. Retaliation will be considered a serious
act of misconduct.
Disciplinary action, up to and including termination, will be imposed in accordance
with the established disciplinary process for behavior proven to bave taken place in
violation of this Policy.
. Employees committing as defined in this Policy are deemed by the City to
be aCting ourside tbe scope of their employment.
Application of Policy
This Policy applies to all officers and employees of the City of Carmel-by-the-Sea,
including, but not limited to, full-time and part-time employees, permanent and
temporary employees, employees covered or otherwise exempted from perso.nnel rules
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City of Cannel-by-the-Sea
City Policy No. C93-02
Harassment Prohibited
or regulations, and employees working under contract for the City. For the purposes of
this Policy, employee" is defmed as each of the above.
This Policy also applies to elected officials, their appointees and volunteers. Harass-
ment includes conduct directed by men toward women, men toward men, women
toward men, and women toward women.
Deimition
Harassment includes, but is not limited to:
L Verbal Harassment -For example: epithets, comments or slurs on
the basis cf race, religion, color, national origin, ancestry, handicap, disability,
medical condition, marital status, sexual orientation, sex, pregnancy, age, or
for asserting family care leave rights.
2. :hysical Harassment For example: assault, :impeding or blocking movement,
or any physical interference with normal work or movement when directed at
an individual on the basis of race, religion, color; national origin, ancestry,
handicap, disability, medical condition, marital status, orientation, sex,
pregnancy, age, or for asserting family care leave rights.
3. Yisual Forms of H11rassment - For exa.n1ple: derogatory posters, notices,
bulletins, cartoons, or drawings on the basis of race, religion, color, national
origin, ancestry, handicap, disability, medical condition, marital status, sexual
orientation, sex, pregnancy. age. or for asserting tamily care leave rights.
4. Sexual Favors - Unwelcome sexual advances, requests for sexual favors, and
otber verbal or physical conduct of a sexual nature which is presented as an
employment condition, unreasonably interferes with an individual's work
performance or creates an offensive work environment.
Employee Obligations
Employees are enoolll1lged and have an obligation to:
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City of Carmel-by-the-Sea
City Policy No. C93-02
Harassment Prohibited
1. Promptly report what they believe to be harassing behavior to a supervisor.
manager, administrator, or the Persormel Officer.
2. Cooperate in any investigation.
3. Refrain from filing any complaint or report of harassment known to, or
belieVed by, the employee to be without merit.
Retaliation
All employees are assured that tbey may make such. reports and participate in any
investigation without fear of retaliation by the City, department management, their
immeclia.te supervisor, or any other employee. Retaliation will be considered a serious
act of misconduct. Anyone found to have committed any act(S) of retaliation will be
.subject to the applicable disciplinary process. up to and including termination.
Complaint Procedure
Anyone wbo believes they have been .subjected to any form of harassment should
attempt to immediately resolve the complaint informally. The goal is to stop the
harassing behavior promptly and establish a good working envirortment.
The Personnel Officer shall:
1. Be notified of llll complaints of harassment
2. Investigate all written complaints of harassment
3. Document Ml complaints of harassment
If the Personnel Officer is the .subject of the complaint, the matter will be investigated
by the Assistant City Administrator.
For the purposes of this procedure 'workdays' shall include Monday tbrough Friday,
8:30a.m.- 5:00p.m., exclusive of holidays.
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City of Cannel-by-the-Sea
City Policy No. C93-02
Harassment Prohibited
Infonnal Process
The following steps are recommended to infonnally address concerns and/or complaints
of harassment:
Step 1
1. The employee should attempt to resolve the issue informally wftbin two (2)
workdays of the alleged incident, by expressing his/her discomfort with the
behavior to the offender in a constructive manner. If the employee would like
support, hefshe may seek support from:
a. His/her immediate supervisor
b. Any supervisor or manager within or outside the department
c. Department Manager
d. Assistant City Administrator
e. Personnel Officer
Step 2
1. If the employee feels Step 1 is inappropriate, too intimidating or threatening,
the employee may, within two (2) workdays of the alleged incident, request
his/her immediate supervisor to arrange for:
a. A confidential meeting, scheduled within two (2) workdays of the request,
where the employee can present his/her complaint to the harassing employee
in the presence of their immediate supervisors(s). The complainant, if
requested, may have a support person of his/her choice attend this meeting.
1) If the immediate supervisor(s) isfare identified as the harassing employee
the Personnel Officer shall arrange for and conduct this meeting.
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City of Cannel-by-the-Sea
City Policy No. C93-02
Harassment Prohibited
a) If the Personnel Officer is identified as the harassing employee the
Assistant City Administrator shall arrange fur and conduct this
meeting.
b) The results of this meeting shall be documented in writing and
forwarded to lhe Personnel Office.
Step 3
L If lhe employee feels Step 2 is inappropriate, too intimidating or threatening,
lhe employee may, within two (2) workdays of the alleged incident, request
his/her Department Manager to arrange for:
a. A confidential meeting, scheduled within two (2) workdays of the request,
where the employee can present his/her complaint to the harassing employee
in the presence of their Department Managers(s). The complainant, if
requested, may have a support person of his/her choice attend lhis meeting.
1) If the Department Manager(s) is/are identified as the harassing employee,
the Personnel Officer shall arrange for and conduct this meeting.
a) If the Personnel Officer is identified as the harassing employee, the
Assistant City Administrator sball arrange for and conduct this
meeting.
b) The results of this meeting shall be documented in writing and
forwarded to the Personnel Office.
Formal Process
If alleged harassment continues after uSing the informal process, or. if the offended
employee chooses not to foUow the informal process, the employee:
1, ShaU fJle a written complaint with the Personnel Officer using the City's
Harassment Complaint Form. This written complaint shall be filed within ten
(10) workdays of the incident. An employee's failure to repon the occurrence
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City of Cannel-by-the-Sea
City Policy No. C93-02
Harassment Prohibited
of the alleged harassment within the ten-workday period may be deemed a
voluntary waiver of any City action.
a. The employee may seek the assistance from a support person of his/her
choice when preparing the written complaint.
Within three (3) workdays of receipt of the completed Harassment Complaint Form the
Persotmel Officer shall meet with the complainant and, if requested, the complainant's
support person, and:
1. Inform the complainant about the City's Harassment policies and complaint
procedures and answer any questions that the complaioant may have regarding
the City's policy;
2. Inform the complainant about the other available options such as filing with the
state and federal compliance agencies;
3. Inform the complainant that under the City's procedure, complaints may be
considered untimely if the written complaint was not filed wilhin (10)
workdays of !he alleged incident, and that allegations brought to state or
federal compliance agencies may have different filiDg time limitations which
should be confirmed by !he complainant with the agencies;
4. Inform the complainant !hat while every reasonable effort wiU be made to
protect !he confidentiality and privacy of the iDdividuals involved, the condnct
of an inVestigation requires that tbe alleged harasser be informed of the
allegations. and !hat wimesses be iDterviewed;
5. Listen to !he complainant's allegations and discuss the actions complained of
with discretion, sensitivity and due concern for the dignity of everyone
iDvolved;
6. Ask the complaiDant what remedies he/she feels would resolve the complaiDt;
7. Advise !he complainant that the meeting will be documented. in writing,
assigned a esse number and flied in the Harassment Complaint File under the
security of the Personnel Officer.
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City of Carmel-by-the-Sea
City Policy No. C9302
Harassment Prohibited
Within three {3) workdays of conducting the meeting with the complainant, the
Personnel Officer shall schedule a meeting with the person who allegedly engaged in
the harassment and:
1. Inform bimlher of the basis for the complaint and the right to be represented by
an individual of his/her choice throughout the process;
2. Give him/her an opportunity to respond to the complaint;
a. This person shall be given ten (10) workdays to respond ill writing to the
allegations and identify witnesses.
3. Inform him/her that if a re.<:ponse to the complaint is not received within ten
(10) workdays, the complaint may be considered valid, and the appropriate
disciplinary action may be taken in accordance with the applicable procedures
outlined in the Municipal Code of the City of CarmeJ-by-the..Sea
a. Disciplinary action is subjeet to the appropriate appeals process.
Investigation Guidelines
Investigations will be timely and as extensive as required, based upon the nature of the
. allegations. All persons named as potential witnesses and those wbo may have
information relevant to the issues of the complaint will be contacted and interviewed
during the course of the investigation.
All investigations shall be documented in writing and will be bandied with discretion,
sensitivity and due concern for the dignity of those involved. Every reasonable effort
will be made to. restrict infonnation on the speeifics of the complaint to those who are
patticipating ill !be investigation: the complainant, !be alleged harasser, witnesses, and
department management.
All persom; contacted or interviewed during the investigation will be requested not to
discuss the subject matter of the investigation in omer to protect the privacy of all those
participating in the investigation.
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City of Cannel-by-the-Sea
City Policy No. C93-02
Harassment Prohibited
If during the course of the investigation, the alleged harassment is reported to be
continuing, the Personnel Officer shall notify the Assistant City Administrator who
shall take such emergency or temporary action as may be necessary or appropriate
under the circumstances.
1. It is the policy of the City of Carmel-by-the-Sea that if the person alleged to be
engaged in the .harassment is the complainant's supervisor, the complainant
shall be removed from direct supervision of that supervisor and that supervisor
sbaU not participate in perfonnance reviews of that employee, pending the
outcome of the investigation.
This action shall !l.Q! be considered pumtive but shall be considered a protective
measure for all involved.
If, at the conclusion of the investigation, it is fotmd that harassment occnm:d, the
Personnel Officer shall forward the findings, which are ru:!I subject to appeal, alODg
with any recommendation$ to the appropriate management level for implementation of
the disciplinary process, if any.
1. The type of disciplinary action recommended shall be commensurate with the
severity of the offense and in accordance with the City's approved disciplinary
action procedures, and must result in prompt and effective remedial action.
a. Disciplinary action is subject to the applicable appeals proc:ess.
At the conclusion of tbe investigation the complainant(s) shall be advised by the
Personnel Officer of the disposition of the complaint. If it bas been determined that
harassment has occurred the complainant(s) shall be notified regarding:
1. Steps taken to correct the harassment;
2. Action the complainant should take if the harassing behavior recurs;
If discipline is imposed on the harasser, the specific manner of discipline imposed shall
Jl.!l! be commumcated to the complainant.
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City of CarmeHy-the-Sea
City Policy No. C93-02
Harassment Prohibited
Supervisory and management personnel shall conduct follow-up inquiries wlth the
involved employees to detennine if the alleged conduct has stopped or has resumed.
These inquiries shall be documented in writing.
Complaints against volunteers, and/or City Councll Appointees
This policy applies equally to volunteers, appointees of the City Council including
members of Boards, Commissions and Committees, the City Administrator, the City
Attorney, tbe City Engineer, and the Ch:y Treasurer.
Employees who believe they have been harassed by any of the above shall notify the
Persowel Officer who shall flrSt try to resolve the matter infonnally.
AJJ.y employee who ftles a complaint against the above officials is assured of protection
against retaliation by that official under City policies as well as state and fede.ral
regulations.
Inf.onnal Process: The following steps are recommended to informally end the
harassment:
1. Resolve the complaint informally by expressing his/her discomfort with the
behavior to the offender in a constructive manner. 1f the employee woold like
support, he/she may seek support from:
a. Department Manager
b. Assistant City Administrator
c. Personnel Officer
If the alleged harassment continues after using the informal process, or if the offended
employee chooses not to follow the informal proceas the employee shall file a formal,
written complaint, pursuant to this Policy, with the Persormel Officer who shall conduct
a fol1llal investigation. Copies of the completed investigative report shall be distributed
as follows:
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City of Carmel-by-the-Sea
City Policy No. C93-02
Harassment Prohibited
1. If the alleged harasser is a volunteer: The report shall be forwarded to the
appropriate management employee in charge of supervising the volunteer who
shall take appropriate action, if any.
2. If the alleged harasser is a member of a Board, Commission. or Committee. or
is the Citv Attorney. the City Engineer. or Citv Treasurer: The report shall be
given to the Mayor, and City Administrator. The Mayor will oversee the
implementation of appropriate disciplinary action, if any.
3. If the alleged harasser is the Cjty Administrator: The report shall be given to
the City Cmmcil's, Personnel Committee. The Collntlittee shall review the
findings and make reoollntlendations, if any, to the entire City Council.
against Elected Officials
This p()licy applies equally to the Mayor and members of the CitY CounciL Employees
who believe they have been harassed by any of the above shall notify the Personnel
Officer, who shall first try to resolve the matter informally.
Any employee wbo files a complaint against the above officials is assured of protection
against retaliation by that official under City policies as well as state and federal
regulatiollS.
Informal Process: The following steps are recommended to informally end the
harasBlllent;
l. Resolve the complaint informally by expressing his/her discomfort with the
behavior to the offender in a constructive manner. If the employee would lik:e
support, he/she may seek support from:
a. Department Manager
b. Assistant City Administrator
c. Personnel Officer
d. City AdministrAtor
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City of Carmel-by-the-Sea
City Policy No. C93-02
Harassment Prohibited
Complaints against Elected Officials
Eonnal Process:
If alleged harassment continues after using the informal process, or if the offended
employee chooses not to follow the informal process, the employee shall file a fonnal,
written complaint, pursuant to this Policy, with the Personnel Officer who shall
conduct a fonnal investigation. If it becomes clear that an allegation against tbe Mayor
and/or a member of the City Council appears to have substance and an internal
resolution is oot possible, the complainllllt will be so notified and referred to tbe state
aDd federal compliance agencies. This referral will be made because the City has no
administrative control over elected officials. Consequently, were remedial action found
to be appropriate, the City woold be unable to provide an effective remedy to tbe
complainant.
State and Federal Compliance Agencies
Nothing in tbis policy shall be intexpreted so as to deny the right of any employee who
believes be/she has been harassed to tile a complaint with the state and/or federal
compliance .agencies and/or in state or federal court. However, time limits for filing
complaints with compliance agencies vary and employees should check directly with
those agencies for specific information.
The state and federal compliance agencies may be contacted at tbe following addresses:
(State) Department of Fair Employment and Housing
111 North Ma:rket Street. #81 0
San Jose, CA 95113-1102
(408)-277-1264
(Federal) Equal Employment Opportunity Comntission
901 Market Street, Suite 500
San Francisco, CA 94103
{415)-744-6500 or
1-(800)-669-3362
13

0464
From:.730242 Page: 117 Date: 1214120095:0PM
1 Michael W. Stamp, State Bar No. 72785
Molly E. Erickson, State Bar No. 253198
2 LAW OFFICES OF MICHAEL W. STAMP
479 Pacific Street, Suite One
3 Monterey, California 93940
Telephone: (831) 373-1214
4 Facsimile: (831) 373-0242
5 Attorneys for Pia lntiff
6
Jane Kingsley Miller
7
s
9
10
11
12
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
JANE KINGSLEY MILLER,
Plaintiff,
V.
Case No. M99513
Complaint filed June 17, 2009
DECLARATION OF
MICHAEL W. STAMP
CITY OF CARMEL-BY-THE-SEA, and
13 DOES 1 through 100,
Date: December 18, 2009
14
15
Defendants.
- - - - - - - - - - - - - - - - - - - - - - ~ '
Time: 8:45 a.m.
Dept.: 4 (Hon. Larry E. Hayes)
16 I, Michael W. Stamp, declare as follows:
17 I have personal knowledge of each of the facts stated below, and the opinions
18 stated in this Declaration are based upon my knowledge, experience, skill, education
19 and training. I could testify competently to each of the statements contained in this
20 Declaration.
21
1. I am an attorney licensed to practice law in the State of California. I have
22 represented Jane Miller in the present matter since May of 2006.
23
2. I have known Richard Guilletl for many years, having met him while he
24 was in law school, dealing with him on several City of Seaside legal matters and
25 litigation from approximately 1997 to 2000, and while I was representing four Carmel
26 senior employees from 2003 to 2008 in matters relating to their employment
27
3. On several occasions over the years, Mr. Guillen has told me that he has
28 a continuing special interest in the legal profession, and that he has considered going
MILLI!"Fl v. CITY OF CARIIIEL-BY-iH5-5EA
CASe NO. M99513
1
DEClAAATION OF MICHAEL W. STAMP
0465
From: 0730242 Page. 2/7 Date: 1214/2009 5:0PM
1 back to law school to finish his degree. He told me he has completed two years of law
2 school, and I have no reason to doubt that. He has made those references to me about
3 his strong interest in the legal profession and the practice of law as recently as 2006,
4 while I was negotiating the Library Director's settlement agreement. I also have seen a
5 published report of an interview with Mr. Guillen where he made similar comments. I do
6 not know why Mr. Guillen would state in this case under 'penalty of perjury that he has
7 no legal training." (Guillen Decl., November 13, 2009, p. 2, line 7.)
8 4. Part of my direct experience with Mr. Guillen in legal matters came in the
9 late 1990's and into 2000, when I represented several City of Seaside employees in
10 claims, including litigation and appeals, arising from their employment. Mr. Guillen, as
11 an assistant in the Seaside city manager's office, was directly involved in some of the
12 cases, and was even designated as a grievance hearing officer in one case. On behalf
13 of my client, I directly cllallenged Mr. Guillen as the hearing officer, and he was
14 removed from that assignment by the City Attorney, Don Freeman. The litigation with
15 Seaside - most of which was handled by Liebert Cassidy for the City - involved claims
16 by the chief of planning, the City Accountant. a deputy fire chief, the city cleri<, and the
17 assistant city clerk. I dealt with at least four different Liebert Cassidy lawyers during
18 that litigation, and also with Don Freeman, City Attomey of Seaside and Carmel.
19 5. The Seaside matters were high-visibility matters within the City
20 government. and the litigation took place over an extended time in Superior Court and
21 the U.S. District Court. They were aggressively litigated and defended. At least twice,
22 Liebert Cassidy filed writs or appeals in the Sixth District Court of Appeal: in one case,
23 my client filed a writ petition in the Sixth District. One of the cases involved a Public
24 Records case where the City appealed a fee award of less than $1,000 (the award was
25 affirmed on appeal and the City was required to pay the fees for the appeal as well). In
26 the City Accountant's whistleblower aclion, my client's house was burglarized while her
27 case was pending, and her home computer's hard drive was taken. The burglary and
28 the claims received prominent media attention. The nature of the claims and the cost
MII.I.ER\1. CITYOFCARMELBYTHE..SEA
f':AorotJ= f\ln M ~ q c ; , 1 ~
2
DE:CLARATION OF MICHAEL W. STAMP
0466
From:.730242 Page: w Date: 1214120095:COPM
1 to the City were publicly discussed at City Council meetings and at City Hall. All of
2 those cases resulted in settlements where my clients were paid compensation by the
3 City. At all times during the litigation, Don Freeman was the City Attorney of Seaside,
4 as well as the City Attorney of Carmel. I had several direct discussions with City
5 Attorney Freeman Involving all of the cases, and he was aware of the costs of the
6 litigation and the resources devoted to it.
7 6. From 2000 to 2002, I represented the Assistant Chief Probation Officer for
8 the County of Monterey, who filed a gender discrimination case against the County.
9 After local outside counsel who had tentatively agreed to settle the case in mediation,
10 Liebert Cassidy substituted In as the County's lawyers. The Liebert Cassidy
11 representation was aggressive. Liebert Csssidy tactics included taking my deposition
12 (the only deposition videotaped in the case), filing and trying to prosecute a oross-
13 complaint against the Superior Court Judges, and an assertion (rejected out of hand by
14 the Court) that I had colluded with the Judges by not suing them on behalf of my client
15 That case settled in 2002, with total payments of more than $500,000 to plaintiff and
16 her counsel.
17 7. In 2002, I represented the first of the four Carmel employees referenced
18 in the pleadings filed in this case. At no point did I communicate to Mr. Guillen or
19 anyone that my clients wanted "Golden Handshakes, or that I was retained as a PERS
20 expert. The claims of my clients went far beyond the handshakes, and I have never
21 tried to be or act as a PERS expert. Mr. Guillen told me that Jane Miller was the most
22 knowledgeable person at Carmel City Hall about PERS and she handled the PERS
23 issues in all four settlements, including the necessary City Council approvals.
24 8. There is no doubt that the four Carmel employees all raised significant
25 claims that went beyond what the City had offered them, and that Mr. Guillen was fully
26 aware of those claims and issues. The claims included hostile work environment, Mr.
27 Guillen's favoritism toward select females, and age and gender discrimination Mr.
28 Guillen and I talked about those claims, and he and I negotiated settlements. There is
MILLER V. CiTY OF CAI<MEL-BV-THE-$E;A
CASE NO. M99613
3
DECLARATION OF MICHAEL W. STAMP
0467
Frorn:.730242 Page: 4fl Date: 121412009 5:0PM
1 nothing in my history with Mr. Guillen or in any other communication that ever took
2 place that would reasonably suggest to Mr. Guillen that I was not willing to litigate those
3 very claims against the City if they could not be settled.
4 !l In all four Carmel matters, my direct contact with Mr. Guillen was
5 approved in advance by the City Attorney, Don Freeman. Mr. Freeman was advised as
6 to the identities of my clients and the settlement Issues. Mr. Freeman, the Carmel City
7 Attorney for 20 years, had direct knowledge that I was representing each of these four
8 employees against the City's position. City Attorney Freeman signed off on the last two
9 settlements (the ones involving the two women who had asserted discrimination). Mr.
1 0 Guillen told me in all four cases that all approvals for each of these settlements had
11 come from the Mayor and City Council as well.
12 10. Mr. Bolanos has filed a declaration stating that after he sent me a
13 February 9, 2009 letter, "the City considered the matter of Plaintiff's allegations against
14 the City Administrator to be closed." Nothing I said or wrote to him after could
15 reasonably be construed as an Intent to close the matter.
16 11. On February 19, 2009, I wrote a letter to Richard Bolanos of Liebert
17 Cassidy Whitmore regarding Jane Miller's claims against the City. That letter stated in
16 part:
19
20
21
22
23
24
25
26
maims.
27
12.
If the City has any interest in mediating this matter, please
let me know within the neld week. On behalf of Ms. Miller, I
am proposing that we mediate the matter fully. If the City
does not choose to engage in mediation or propose a
realistic alternative, that will end the negotiation process,
and Ms. Miller will take the appropriate steps to protect her
rights.
Mr. Bolanos did not respond until March 3, 2009. declining to mediate the
13. OnApril17, 2009, I wrote back to Mr. Bolanos. The letter stated in part,
28
''the purpose of this letter is to ... present the City and Mr. Guillen with an opportunity
Mli,.i,.eRV. CITY OF CARMEL-BY-THE-SEA
r..o.c;:;;; Nn aAo0'\1 '\
0eCLAAATION OF MICHAEL W. STAMP
0468
From: .730242 Page: 5f7 Date: 121412009 5:. PM
1 to consider settling Ms. Miller's claims.' The letter made specific references to the
2 claims, to the issues, and to compensation.
3 14. On May 5, 2009, I wrote another letter to Mr. Bolanos regarding Jane
4 Miller's claims against the City. That letter stated in part:
5
6
7
8
9
Ms. Miller has not changed the position that she advanced
to the City nearly a year ago. She has been damaged by
the City's action and seeks a remedy. . . . If the City wants
to discuss a settlement that would compensate Ms. Miller for
all her losses, you should contact me promptly.
15. The City in 1991 provided me with a public copy of a harassment policy
10 that was in effect at that time. (In Camera Review, pp. 2-5.) I recently obtained the
11 current harassment policy. The current policy has been completely rewritten (not by
12 me) since 1991. Attached to the Memorandum of Points and Authorities as Exhibit A is
13 the 2008 policy, with yellow highlighting on the parts that have changed. As Jane Miller
14 previously explained in her declaration filed October 8, 2009 (paragraph 6}, during her
15 time with the City she relied heavily on the legal services provided by Liebert Cassidy
16 for ongoing specialized personnel representation on issues such as the review or
17 creation of City policies, procedures and ordinances. The policy in effect in 2008 is not
18 the policy I provided comments on 18 years ago.
19
16. I have an ongoing professional relationship with City Attorney Freeman.
20 have spoken to him dozens of times over the past ten years. At no point did he ever tell
21
me, mention to me, or suggest to me anything about there being a conflict in my
22 representation of any of the four City employees or Jane Miller or any other City
23 employee. I last spoke to Mr. Freeman specifically about the Miller case in mid-2008.
24
17. Over the years, I have represented public employees in scores of
25 instances involving several different public entities, including the County of Monterey,
26 Salinas, Monterey, Carmel, special districts, and others. In cases where there are
27 claims of gender discrimination, I have observed that the issues of client stress and the
28 client's trust with the attorney become paramount to the clients. The relationships
5
MILLER V. CITY OF CARMEl-eY-THE-SEA DECLARATION OF MICHAEL W. STAMP
0469
From:0730242 Page: 617 Date: 1214120095:00PM
1 established with those clients take a long time to develop, and the very nature of the
2 cases makes representation particularly difficult Clients in such cases frequently are
3 deeply concerned about their economic and personal futures (especially older clients)
4 and about the impact of litigation upon their ability to work elsewhere, among other
5 factors. In order to create and maintain the necessary level of trust and cooperation, I
6 routinely deeply involve employment clients in the daily tasks relating to their cases,
7 keeping them fully advised and consulting with them frequently and regularly.
8 18. This case has fit the situation described above, and is additionally
9 complicated by issues of health and the complexity of the employer's conduct here.
10 During the time that I have represented Ms. Miller, we have communicated several
11 times a week, have met frequently, and she has provided me with vital information
12 involved with my representation with her. We have developed an excellent attomey-
13 client professional relationship during this time. It has been difficult for Ms. Miller to
14 participate at this level of intensity, and her participation has gradually deepened over
15 the past 19 months.
16 19. Up until the time the City flied its disqualification mo1ion, I had spent more
17 than 200 hours of my time and more than 240 hours of associate attorney and staff
18 time on this case. in addition to thousands of dollars on litigation expenses. I have
19 turned down several other matters due to the time commitments of this representation.
20 My Investment In this work is more than $150,000, even without taking into
21 consideration the high cost of opposing the mo1ion for the past three months, and the
22 many other matters that I have turned down due to my allocating time for this case,
23 20. Had the City raised a conflict claim at any time between 2003 and May
24 2009, I i.vould have carefully and closely evaluated that claim, taking into account the
25 merits of the allegations, and weighing heavily the impact upon my client, her health,
26 her finances, and her case.
27
28
6
MILLER V. CiTY OF CARMEL-BYTHE-SEA Ot;Cl.ARATION OF MICHAEL W. STAMP
~ ~ " - ~ ... - ...... aan .... r = ~
0470
From:0730242 Page: 7f7 Date: 12/412009 5:0PM
1 21. The City did not give me even a hint of any possible claim of conflict until
2 the motion to disqualify was filed. By that time, I had been working with my client since
3 May 2008 on her case.
4 I declare under penalty of p e ~ u r y that the foregoing is true and correct and that
5 this Declaration is executed under penalty of p e ~ u r y under the laws of the State of
6. California this 4lh day of December, 2009,
7
8
9
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
- -- ... _ ... r'>,._,.,<"'
Michael W. Stamp
7
DECLARATION OF MICHAEL W, STAMP
0471
0
Date: 12/4120095---PM
From: 730242 Page. 112 VW
1 Michael W. Stamp, State Bar No. 72786
Molly E. Erickson, State Bar No. 253198
2 LAW OFFICES OF MICHAEL W. STAMP
479 Pacific Street, Suite One
3 Monterey, California 93940
Telephone: (831) 373-1214
4 Facsimile; (831) 373-0242
5 Attorneys for Plaintiff
6
Jane Kingsley Miller
7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
Case No. M99513
Complaint filed June 17, 2009
FILED UNDER SEAL: DECLARATION
OF MICHAEL W. STAMP CONCERNING
DOCUMENTS INCLUDED IN CITY'S
1992 DOCUMENTS
Dept.: 4 (Hon. Lany E. Hayes)
16 I, Michael W. Stamp, declare as follows;
17 1. The City has now produced some additional pages from a 1992 personnel
18 matter involving a former City employee who worked for a brief time at the Carmel
19 Youth Center. These additional pages are not re1erenced in the original Heidi Burch
20 declaration or as part of the moving papers on the City's notice of this motion.
21 2. In 1992, I received Information from the City on this Youth Center matter.
22 The infonnation was limited to that particular employee, who was a lower-level clerical
23 worker who had been given a negatiVe job evaluatkln. I also corresponded with the
24 employee's legal counsel, Mary-Margaret O'Connell.
26 3. In 1992, the employee filled out a form accusing her supervisor at the
26 Youth Center of inappropriate personal conduct with his girlfriend. She also claimed
27 that a second person, the acting temporary supervisor of the Youth Center had made
28 inappropriate sexual comments about a different person, and that a third person, the
Mlli.ER \1, C11Y Of CARMEL-IIYTHE-5EA
CASE No. M99513
1
FII.EO UNDER SEAL; DECLARATION OF MICHAel. W. STAMP
CONCERNlNG CllY'S 1992 Dnr.IIU<"""
0472
From:0730242 Page: m Date: 121412009 5:0PM
1 Acting City Administrator Greg D'Ambrosio, had asked her a question about whether
2 her lawyer and not she was making the factual assertions, which the lawyer found
3 objectionable.
4 4. My best recollection is that the matter did not go to litigation or to the
5 Department of Fair Employment and Housing, that the matter was settled with the
6 involvement of City Attorney Don Freeman, and that the claims against the acting
7 supervisor and Mr. D'Ambrosio were withdrawn. There was no confidential issue or
8 question as to the application of any City policy, including the fom1er harassment policy
9 that has been extensively rewrittan over the years, or how the City would respond
10 (investigate the factual determinations). None of the persons involved with the matter
11 has worked for the City in the past several years.
12 5. The City either is withholding the settlement documents and related
13 documents for this matter that would put this minor matter in context, or has destroyed
14 them sometime in the past 17 years. The destruction of City records is subject to State
15 law, whiclh provides a procedure for cities that requires the approval of the City Council
16 and City Attorney for the destruction of certain documents.
17 6. There is nothing about that fonner matter that has any bearing on the
18 Miller case. The law applicable in 1992 has developed dramatically since then, the
19 policy of the City has been rewritten without any input from me, and none of the
20 decision makers or other persons involved In the matter are still with the City. I have no
21 files or papers relating to that matter except what the City has provided on this motion.
22 I declare under penalty of that the foregoing is true and correct and that
23 this Declaration is executed under penalty Of perjury under the laws of the State of
24 California this 4th day of December, 2009, i_l!
25
26
27
26
MtU.ER V. CliY OF CARMELBY-THeSEA
CASE No. M99513
2
FILED UNOER SEAL: DecLARATION OF' MICHAEL W. STAMP
CoNCERNING 1QQ? n/"''rl ....
0473
From:.730242 Page: 116 Date: 1214120095:0PM
1 Michael W. Stamp, State Bar No_ 72785
Molly E. Erickson, State Bar No. 253198
2 LAW OFFICES OF MICHAEL W. STAMP
479 Pacific Street, Suite One
3 Monterey, California 93940
Telephone: (831) 373-1214
4 Fac;simile: (831) 373-0242
5 Attorneys for Plaintiff
6
Jane Kingsley Miller
7
8
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
10
11
12
JANE KINGSLEY MILLER,
Plaintiff,
v.
CITY OF CARMEL-BY-THE-SEA, and
13 DOES 1through 100,
Defendants.

Case No. M99513
Complaint filed June 17, 2009
DECLARATION OF
JANE KINGSLEY MILLER
Date: December 18, 2009
Time: 8:45 a.m.
Dept.: 4 (Hon. Larry E. Hayes)
14
15
16
17
I, Jane Kingsley Miller, declare as follows:
I have personal knowledge of each of the facts stated below_ I could testify
18 competently to each of the statements contained in this Declaration.
19
1. Between 2003 and 2008, I participated in the matters raised by Mr. Stamp
20 on behalf of the four other senior employees who hired Mr. Stamp as their attorney to
21 address serious personnel matters. I spoke directly with Richard Guillen on those
22 matters. In all four matters, I was the perscn who handled the PERS issues for the City
23 and the employees. The PERS issues were not complicated issues, and there would
24 have been no need for an employee to hire an attorney on those PERS matters. Mr.
25 Guillen never indicated in any way to me that Mr. Stamp was working on PERS issues.
26
2. I knew while the four employee matters were being negotiated that at
27 least two of lhe four senior employees raised serious issues about hostile work
28 erwironment and discriminatory treatment in the workplace, and that the other two
MiLLm V, CITY OF CARMEL-IlV-THE.SEA
CASE No. M99513
1
0!CLARA110N OF JAN! MILLER
0474
From:0730242 Page: 216 Date: 121412009 5:0PM
1 raised issues about punitive and arbitrary treatment by the City as part of their issues
2 about being forced from their employment by the City. I discussed those matters with
3 Mr. Guillen. In regard to the City Library Director, Mr. Guillen and I directly discussed
4 the claims of sexual harassment by the Director. Mr. Guillen indicated that he knew
5 that Mr. Stamp could become litigious on particular claims.
6 3. I saw how Mr. Stamp dealt with the City on those matters. I could see that
7 he was representing his clients' interests professionally and cordially, and was obtaining
8 results that were good for his clients. These four settlements were not "golden
9 handshakes," contrary to what Mr. Guillen has now claimed in this litigation. I am the
10 person who prepared the financial analysis for each of the settlements, and I presented
11 the information to Mr. Guillen. All four matters involved significant compensation,
12 cash payments or severance pay, that were not available otherwise, as stated
13 in my October 7, 2009 Declaration in this case.
14 4. When Mr. Stamp started representing the City Library Director in 2006, I
15 mentioned that to the City's personnel lawyers, Liebert Cassidy Whitmore. I spoke with
16 . Cynthia O'Neill, who is a partner with Liebert Cassidy and who was the City's principal
17 personnel lawyer. She made it clear that she was familiar with Mr. Stamp as an
18 employment attorney, and that she considered him to be a potential problem for the
19 City on the Library Director's claims. My conclusion after speaking with her was that
20 Ms. O'Neill Mr. Stamp was good at representing employees, and that Liebert
21 Cassidy and Ms. O'Neill had a history with Mr. Stamp's work on his behalf of his clients.
22 5. Since May of 2008, I have been working on this case with Michael Stamp
23 as my attorney. We have spent considerable hours and days discussing strategies,
24 other wort< product issues, evidence, and approaches to the lawsuit I have now filed
25 against the City. I have relied on Mr. Stamp as my attorney, confidant and advisor.
26 have paid him thousands of dollars in attorney fees from my retirement savings to
27 represent my Interests and pursue justice In this case, and he also has provided a great
28 deal of work at no charge to me. I have provided him with voluminous Information
MILLERV. CIT\' OF CARM!LI!lYTHE-5EA
f.JI"'' UaOI\:1
2
DeCLARATION OF JANE KINGSLEY MllHR
0475
From.730242 Page: 3/6 Date: 121412000 s:O PM
1 regarding the particulars of the case, and have prepared information in preparation for
2 his use in depositions and triaL We have exchanged many phone calls and emails. I
3 understand that he and his Office have put hundreds of hours into this case, that he
4 has consulted with experts. and that he has developed a litigation strategy of
5 considerable complexity. He has become intimately familiar with, and knowledgeable
6 about, my case. I know of no other attorney who would be able to represent me at this
7 time with the appropriate level of ability, experience, training, and skill.
8 6. I am acquainted with the work of many of the attorneys in Monterey
9 County, based on my career in public service, my husband's career in law enforcement
10 in Salinas and Pacific Grove, and other ties to the local legal community. There is no
11 other attorney in Monterey County with whom I feel anywhere near comfortable as with
12 Michael Stamp, due to our personal and professional relationship of trust. There Is no
13 other attorney in whom I could possibly have greater confidence. I have made a
14 significant investment in time, money, and information exchange in our professional
15 relationship. A forced change of counsel at this point in time would be costly,
16 emotionally devastating, and extremely prejudicial to my case. I am not sure I have the
17 energy or ability to do so. As a result, I greatly fear that the disqualification would leave
18 me unable to find a lawyer with the expertise necessary to handle my claim. and who
19 would be able to take the case on a contingency or a partial contingency. The effect of
20 the disqualification would be to make it extremely difficult or impossible for me to
21 continue with my claims.
22 7. I made my decisions about whether to prosecute this case by carefully
23 considering the risks, the emotional and physical commitment required of me. and the
24 impacts of the litigation. It took me many months to analyze all the factors and to make
25 a careful choice.
26 8. A key factor was the willingness of Mr. Stamp to represent me. He has a
27 particular expertise and reputation, based upon years of work In representing public
28
M!LLE:Fi V. C!lY OF CAF!MELBY THE-SEA
CASE No. M99513
DECLARATION OF JANE KINGSLEY MILLER
0476
From:.730242 Page: 416 Date: 12/412009 5:0PM
1 employees in litigation and in settlements. There is no other lawyer in this County that
2 has that same expertise and quality of representation.
3 9. Going forward in this case has required me to put my private life,
4 professional reputation, and character on the line in public and among my friends,
5 family and peers. This is very risky emotionally and health-wise. Had the City raised
6 the issue, even as a potential issue, between 2003 and 2008 during the representations
7 of the other four senior City employees or even before we filed suit in June 2009, I
8 would have been able to include that position of the City in my decision-making before
9 assuming the rtsk, expense, exposure, and extreme emotional stress of this litigation.
10 10. I have read the declaration of Dr. Deborah Wright in this case. Dr. Wright
11 has been my treating psychologist, and I agree with her descriptions and conclusions.
12 I declare under penalty of that the foregoing is true and correct and that
13 this Declaration is executed under penalty of perjury under the laws of the State of
14 California this 4
111
day of December, 2009, in Monterey, California.
15
16
17
18
19
20
21
22
23
24
25
26
27
28
MILLER V. CITY OF
CASE NO. M99513
4
DECLARATION OF JAI\II!: KINGSLEY MUER
0477

0
Frog 730242
Page. 1/6 Date: 121412009 50 ?M
1 Michael W. stamp, State Bar No. 72785
Molly E. Ericl<son, State Bar No. 253198
2 LAW OFFICES OF MICHAEL W. STAMP
479 Pacific Street, Suite One
3 Monterey, California 93940
Telephone: (831) 373-1214
4 Facsimile: (831) 373-0242
5 Attorneys for Plaintiff
Jane Kmgsley Miller
6
7
8
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
10
11
12
JANE KINGSLEY MILLER,
Plaintiff,
v.
Case No. M99513
Complaint filed June 17, 2009
DECLARATION OF
JANE KINGSLEY MILLER
CITY OF CARMEL-BY-THE-SEA, and
13 DOES 1 through 100,
Date: December 18, 2009
14 Defendants.
Time: 8:45 a.m.
15
------' Dept.: 4 (Hon. larry E. Hayes)
16 I, Jane Kingsley Miller, declare as follows:
17 I have personal knowledge of each of the facts stated below. I could testify
16 competently to each of the statements contained in this Declaration.
19
1. Between 2003 and 2006, I participated in !he matters raised by Mr. Stamp
20 on behalf of the four other senior employees who hired Mr. Stamp as their attorney to
21 address serious personnel matters. I spoke directly with Richard Guillen on those
22 matters. In all four matters, I was the person who handled the PERS issues for the City
23 and the employees. The PERS issl!es were not complicated issues, and there would
24 have been no need for an employee to hire an attorney on those PERS matters. Mr.
25 Guillen never indicated in any way to me that Mr. Stamp was working on PERS issues.
26
2. I knew while the four employee matters were being negotiated that at
27 least two of the four senior employees raised serious issues about hostile wor1<
28 environment and discriminator)' treatment in the workplace, and that the other two
1
-----'-------::::oecLA=-: RA'tlON OF JANE KINGSLEY MuER
CAs No. M9951:>
0478
Page: 216 Date: 12J412oo0 PM
1 raised issues about punitive and arbitrary treatment by the City as part of their issues
2 about being forced from their employment by the City. I discussed those matters with
3 Mr. Guillen. In regard to the City Library Director, Mr. Guillen and I directly discussed
4 the claims of sexual harassment by the Director. Mr. Guillen indicated that he knew
5 that Mr. Stamp could become litigious on particular claims.
6 3. I saw how Mr. Stamp dealt with the City on those matters. I could see that
7 he was representing his clients' interests professionally and cordially, and was obtaining
8 results that were good for his clients. These four settlements were not "golden
9 handshakes, contrary to what Mr. Guillen has now claimed in t h i ~ ; litigation. I am the
10 person who prepared the financial analysis for each of the settlements, and I presented
11 the information to Mr. Guillen. All four matters involved significant compensation,
12 including cash payments or severance pay, that were not available otherwise, as stated
13 in my October 7, 2009 Declaratlon in this case.
14 4. When Mr. Stamp started representing the City Library Director in 2006, I
15 mentioned that to the City's personnel lawyers, Liebert Cassidy Whitmore. I spoke with
16 Cynthia O'Neill, who is a partner with Liebert Cassidy and who was the City's principal
17 personnel lawyer. She made it clear that she was familiar with Mr. Stamp as an
18 employment attorney, and that she considered him to be a potential problem for the
19 City on the Ubrary Director's claims. My conclusion after speaking with her was that
20 Ms. O'Neill knew Mr. Stamp was good at representing employees, and that Liebert
21 Cassidy and Ms. O'Neill had a history with Mr. Stamp's work on his behalf of his clients.
22 5. Since May of 2008, I have been working on this case with Michael Stamp
23 as my attomey. We have spent considerable hours and days discussing strategies,
24 other work product issues, evidence, and approaches to the lawsuit I have now filed
25 against the City. I have relied on Mr. Stamp as my attorney, confidant and advisor.
26 have paid him thousands of dollars in attorney fees from my retirement savings to
27 represent my interests and pursue justice In this case, and he also has provided a great
28 deal of wofil at no charge to me. I have provided him with voluminous Information
MILLER V. CITY OF CARMElBYTHESEA
r.o\Ct; ~ UCQI;<t'l
2
0eCLARAT10N OF JANE KINGSLEY MILLER
0479
Page 316
Date: 1214120o0 PM
1 regarding the particulars of the case, and have prepared information in preparation for
2 his use in depositions and trial. We have exchanged many phone calls and emails. I
3 understand that he and his Office have put hundreds of hours into this case, that he
4 has consulted with experts, and that he has developed a litigation strategy of
5 considerable complexity. He has become intimately familiar with, and knowledgeable
6 about, my case. I know of no other attorney who would be able to represent me at this
7 time with the appropriate level of ability, experience, training, and skill.
8 6. I am acquainted with the work of many of the attorneys in Monterey
9 County, based on my career in public service, my husband's career in law enforcement
10 In Salinas and Pacific Grove, and other ties to the local legal community. There is no
11 other attorney in Monterey County with whom I feel anywhere near comfortable as with
12 Michael Stamp, due to our personal and professional relationship of trust. There is no
13 other attorney in whom I could possibly have greater confidence. I have made a
14 significant investment in time, money, and information exchange in our professional
15 relationship. A forced change of counsel at this point in time would be costly,
16 emotionally devastating, and extremely prejudicial to my case. I am not sure I have the
17 energy or ability to do so. As a result, I greatly fear that the disqualification would leave
18 me unable to find a lawyer with the expertise necessary to handle my claim, and who
19 would be able to take the case on a contingency or a partial contingency. The effect of
20 the disqualification would be to make it extremely difficult or impossible for me to
21 continue with my claims.
22 7. I made my decisions about whether to prosecute this case by carefully
23 considering the risks. the emotional and physical commitment required of me, and the
24 impacts of the litigation. It took me many months to analyze all the factors and to make
25 a careful choice.
26 8. A key factor wa& the willingness of Mr. Stamp to represent me. He has a
27 particular expertise and reputation, based upon years of work In representing public
28
MILLER v. CllYOFCARMSLB'fniE-SEA
CASE No. M99513
3
DECLAI'!ATION OF JANE KINGSLEY MILLER
0480
Page: 4/6
Date: 12/4/20090 M
1 employees in litigation and in settlements. There is no other lawyer in this County that
2 has that same expertise and qual tty of representation.
3 9. Going forward in this case has required me to put my private life,
4 professional reputation, and character on the line in public and among my friends,
5 family and peers. This Is very risky emotionally and health-wise. Had the Crty raised
6 the issue, even as a potential issue, between 2003 and 2008 during the representations
7 of the other four senior Crty employees or even before we filed suit in June 2009, I
8 would have been able to include that position of the Crty in my decision-making before
9 assuming the risk, expense, exposure, and extreme emotional stress of this litigation.
10 10. I have read the declaration of Dr. Deborah Wright in this case. Dr. Wright
11 has been my treating psychologist, and I agree with her descriptions and conclusions.
12 I declare under penalty of p e ~ u r y that the foregoing is true and correct and that
13 this Declaration is executed under penalty of perjury under the laws of the State of
14 California this 4"' day of December, 2009, In Monterey, California.
15
16
17
18
19
20
21
22
23
24
25
26
27
28
MILLER V. Cf!Y OF CARMEL-BY-THE-SeA
CASE No. M99513
ane ngsley Miller
4
OliiCLAAAllON OF JANE K!NGSL.EV Mlu.ER
0481
From030242 Page: 1/5 Date: 1214i20o0 PM
1 Michael W. Stamp, State Bar No. 72785
Molly E. Erickson, State Bar No. 253196
2 LAW OFFICES OF MICHAEL W. STAMP
4 79 Pacific Street, Suite One
3 Monterey, California 93940
Telephone: {831l373-1214
4 Facsimile: (831 373-0242
5 Attorneys for Plaintiff
6
Jane Kingsley Miller
7
8
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
10
11
12
JANE KINGSLEY MILLER,
Plaintiff,
v.
Case No. M99513
Complaint filed June 17, 2009
DECLARATION OF
DEBORAH E. WRIGHT
CITY OF CARMEL-BY-THE-SEA, and
13 DOES 1 through 100,
Date: December 18, 2009
8:45a.m.
14
15
16
17
Defendants.
Time:
- - - - - - - - - - - - - - - - - - - - - - - - ~ '
Dept: 4 (Hon. Larry E. Hayes)
I. Deborah E. Wright. declare as follows: 1.
2. I am a licensed psychologist In Monterey, California. I received my Ph.D.
18 in psychology from the University of California Santa Cruz. in 1988.
19
3. My Ph.D. dissertation was on women In non-traditional occupations. I am
20 familiar with the literature about the psychology of women in the WQrkforce.
21
4. I was a Lecturer in Psychology and Women's Studies (1988-1990) and a
22 Teaching Assistant (1982-1987) at the University of California at Santa Cruz.
23
5. I have been a practicing professional psychologist since 1990, and have
24 been licensed to practice independently since 1992. I have practiced professional
25 clinical psychology continuously 1992.
26
6. Before establishing my private clinical practice, I worked for two years
27 (3,000 hours} as an intern. with placements at Community Hospital of the Monterey
28 Peninsula (In-Patient and Out-Patient Departments), Santa Cruz County Department of
1
MilLER V. CrlY OF CARMELBY1HE-8EA
CAse No. M99513
O!!Cl.ARA TION OF DeBORAH E. WRIGHT
~
!
I
I
I
!
t
!
I
I
0482
Page: 215 Date: 12/4/20o0 PM
1 Mental Health (Adult Out-Patient Program), and in private practice with an experienced
2 professional psychologist.
3 7. The opinions in this declaration are based on my experience, training,
4 education, observation, skills and knowledge. The factual statements are true as to my
5 own knowledge. I could com petentty testify to all matters stated in this Declaration.
6 8. I have been treating Jane Miller since May of 2008. My diagnosis of Ms.
7 Miller has moved back and forth between moderate depression and severe depression,
8 and I have concluded that her condition is directly attributable to her work situation
9 involving Richard Guillen and the City of Carmel-by-the-Sea.
10 9. Initially, I saw Ms. Miller every week. Over time, her condition improved,
11 and we moved to seeing her every other week. She went onto medication, and soon
12 wanted to go off medication, but her condition did not allow it. She continues to take
13 prescribed medication.
14 10. Ms Miller is very dedicated to her work. Her work is a large part of her
15 identity. She sees herself as a very cooperative and competent employee. The current
16 situation has left her with a great deal of grief and disappointment that she cannot end
17 her career in a positive way.
18 11. Ms. Miller states that she protected Mr. Guillen for years in her role as
19 human resources manager. Ms. Miller watched colleagues at the City be treated by
20 Mr. Guillen in an unfair, arbitrary, sometimes inappropriately intimate and at other times
21 rude fashion. She recalled that those colleagues were likely not in a position to
22 challenge the City for the behavior direcled at them. When that behavior Wli!S directed
23 at her, she felt that it was important that she stand up for what was right. Ms. Miller felt
24 she was secure enough to stop Mr. Guillen's pattern of behavior, and prevent It from
25 happening to others.
26
27
28
MILLER II. CITY OF CARMoL-IlYTHE-SEA
C A S ~ No. M99513
2
DECt.ARA TtON OF DEBORAH E. WRIGHT
0483
Page: 315 Date: 1214/20090 PM
1 12. Around early September 2009, around the time that the City started to
2 attempt to remove Mr. Stamp as Mr. Miller's counsel, Ms. Miller's condition began to
3 decline, and has continued to do so. Due to her anxiety around whether she will be
4 able to keep her attorney and her belief that Mr. Guillen, the City, and now the Court
5 system have betrayed her, her diagnosis has now returned to moderate depression,
6 with periods of severe depression. In my professional opinion, the raising of this issue
7 in September 2009 is the direct link to her deteriorating condition.
8 13. When Ms. Miller first sought treatment from me, she had already started
9 working with Mr. Stamp, and trusted him. That trust has deepened over time. She has
10 worked closely with Mr. Stamp, has met with him on many occasions, and has very
11 frequent contact with him on her case.
12 14. The loss of Mr. Stamp as her attorney at this stage is very likely to deepen
13 Ms. Miller's depression. Given her current level of emotional distress, and the
14 likelihood of an even deeper depression, it is unlikely that Ms. Miller would have the
15 energy or stamina to find or select a new attorney. She would be severely handicapped
16 in her efforts at litigation. For patients who have symptoms such as insomnia,
17 nightmares, anxiety, and depressed mood, and who have difficulty getting out of bed in
18 the morning- such as Ms. Miller- going out and finding a new attorney presents an
19 almost Insurmountable challenge. Even is she could risk finding new counsel, in my
20 opinion, she would find it difficult to assist the new attorney in the same way she has
21 assisted Mr. Stamp. Going over the same painful events yet another time in order to
22 retain new counsel is likely to be more than she can handle. But, If she could not find a
23 new attorney and go over all the material again, she might feel guilty about her failure
24 to persist in seeking justice.
25 15. Depression can affect the immune system, lowering one's normal level of
26 immunity. As another example of how the current stress appears to have affected her,
27 since early September, when the attempt to remove Mr. Stamp began, Ms. Miller, who
28
MilLER V. CITY OF CARM!!L-t!Y-THE-5EA
t"..<sF Nn MQQII13
3
DECLARATION OF DEBORAH E. WRIGHT
0484
Page: 4/5 Date: 1214noo0 PM
1 is normally healthy, has had the flu twice (or possibly one illness without full recovery,
2 followed by a relapse).
3 16. In Ms. Miller's case. the sexual harassment and the age discrimination
4 that led to this case were closely interrelated. Ms. Miller has given examples, including
5 texts of strangely intimate emails, of how Mr. Guillen variously treated Ms. Miller as a
6 sexual object, a girlfriend, and at other times as a longed-for mother figure.
7 17. Sexual harassment of women Jn the workplace generally takes two distinct
8 .steps. The first step is the direct harassment of the victim. Typically the victim tolerates
9 the harassment for a period of time for a variety of reasons, such as hoping it will
10 change, not wanting to risk her Job, dealing with other Issues in her life, trying to get
11 past it, etc. The second step is when the victim finally complains about the harassment.
12 At that point, the supeNisors may not respond, or ignore the complaint, deny it outright,
13 or delay any response. That is when most victims get very depressed, and that is the
14 pattern that is occurring with Ms. Miller. Such persons have dealt with the problem as
15 best they could, believing they would get help, but when they finally tried to get help,
16 they were retaliated against and their claims denied by the only people who could help.
17 18. Both of these steps are consistent with what Ms. Miller has expressed.
18 She dealt with Mr. Guillen's behavior for a period of time. When she finally could not
19 take it any longer and complained, the City denied her complaints (by ordering her back
20 to work, an order that came from the very person about whom she was complaining}.
21 The City then responded very slowly. Rather than promptly investigate the complaints,
22 the City delayed for months, did not initiate an investigation until months after Ms. Miller
23 complained, apparently did not inteNiew the persons whom Ms. Miller suggested, and
24 did not give her any of the contents of the City's investigation until many months after
25 she made the complaint.
26 19. Ms. Miller's distress about the disqualification Claim is heightened by the
27 fact that she was the City's human resources manager at the time that Mr. Stamp
28 brought four previous claims against the City from 2003 to 2008. She participated in
Mll.l.l;RV. CITY Of CIIRMEl-BYTHESEI\
C".AJ:;f' No. M91'1513
4
DECLARATION OF DEBORAH E. WRIGHT
0485
Page: 515 Date: 1 2 / 4 1 ~ PM
1 the City's efforts to deny or reduce the amounts of the claims asserted by Mr. Stamp on
2 behalf of his clients, and she reports that she knew in each case that Mr. Stamp was
3 advocating forcefully for his clients and against the City.
4 20. Had the claim of attorney conflict been raised at a point in the years when
5 Mr. Stamp was representing the four other City employees, or even if the claim had
6 been raised before the lawsuit was filed, Ms. Miller would not have been faced with the
7 extreme stress that is being caused by the current disqualification proceedings. If Mr.
8 Stamp had been disqualified anytime before Ms. Miller retained him in May 2008, Ms.
9 Miller would have selected a different lawyer to prosecute this case, and would have
10 been able to build the level of trust essential to her representation.
11 21. As a treating psychologist for this patient, it is my opinion that the delay in
12 raising this disqualifrcatlon Issue at this time has been particularly damaging to Ms.
13 Miller under the circumstances presented here. It has affected her emotional state in
14 very significant ways. In my professional opinion, the delay by the City in raising the
15 issue has caused significant injury to Ms. Miller's recovery. A disqualification at this
16 date, after Ms. Miller has invested so much trust in Mr. Stamp, would be likely to cause
17 very significant and serious emotionar harm to Ms. Miller.
18 I declare under penalty of perjury that the foregoing is true and correct, that the
19 professional opinions stated herein are my professional opinions based on the factors
20 described above, and that this Declaration is executed under penalty of perjury onder
21 the laws of the State of California this 3rd day of December, 2009, in Monterey,
22 California.
23
24
25
26
27
28
MILU!RV. CITY OF CI\RMEI.-9Y-THESEA
CASe NO. M99513
5
0ECI.ARATION OF DEBORAH g_ WRIGHT
0486
0
i
1 i Michael W. Stamp, State Bar No. 72785
Molly E. Erickson, State Bar No. 253198
2 LAW OFFICES OF MICHAEL W. STAMP
479 Pacific Street, Suite One
3 Monterey, California 93940
Telephone: (831) 373-1214
4 Facsimile: (831) 373-0242
5 Attorneys for Plaintiff
Jane Kingsley Miller
0
6
7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
9 JANE KINGSLEY MILLER,
1 0 Plaintiff,
11 v.
12 CITY OF CARMEL-BY-THE-SEA, and
DOES 1 through 100,
13
14
Defendants.
Case No. M99513
Complaint filed June 17, 2009
[PROPOSED] ORDER
Date: December 18, 2009
Time: 8:45a.m.
Dept: 4 (Hon. Larry E. Hayes)
15 Defendant City of Carmel-by-the-Sea's Motion to Disqualify Plaintiff's Counsel
16 came on regularly for hearing in Department 4 on December 18, 2009, the Honorable
17 Larry E. Hayes presiding. Suzanne Solomon appeared on behalf of the City of Carmel-
18 by-the-Sea. Michael W. Stamp appeared on behalf of Plaintiff Jane Kingsley Miller.
19 The Court, being fully advised and having considered the arguments and
20 evidence presented, hereby
21 ORDERS, ADJUDGES and DECREES that the motion to disqualify plaintiff's
22 counsel is denied, for each and every of the following grounds:
23
Lack of a Sl!bstantial Relationship.
24 The City has failed to meets its burden of showing that there is a substantial
25 relationship between Mr. Stamp's former representation of the City and his current
26 representation of Ms. Miller.
27 A substantial relationship exists when the evidence before the trial court supports
28 a rational conclusion that information material to the evaluation, prosecution,
MILLER V. CITY OF CARMEL-BY-THE-SEA
f:A><F Nn M<:l<:lS 1::1
1
[PROPOSED] ORDER
0487
0
0
I
1 settlement, or accomplishment of the former representation given its factual and legal
2 issues is also material to the evaluation, prosecution, settlement or accomplishment of
3 the current representation given its factual and legal issues. (Jessen v. Hartford (2003)
4 111 CaLApp.4th 698, 713.) The evidence presented by the City does not support the
5 inference or existence of a substantial relationship. The City did not show that the
6 confidential information Mr. Stamp received in the former matters is materially related to
7 the current matter (Faughn v. Perez (2006) 145 CaLApp.4th 592, 604-606) and that
8 Mr. Stamp can now use this information to the advantage of Ms. Miller and to the
9 disadvantage of the City in this case (/d., at p. 610).
10 Delay.
11 Unjustified delay in bringing a motion to disqualify results in waiver of the claim of
12 conflict or an implied consent to the conflict (River West, Inc., v. Nickel (1987) 188
13 Cai.App.3d 1297, 1310; ZadorCorp. v. Kwan (1995) 31 Cai.App.4th 1285, 1302.)
14 The City has impliedly consented to Mr. Stamp's representation first by not
15 claiming a conflict when Mr. Stamp, over a period of five years, represented four senior
16 City employees with claims similar to Ms. Miller, and second, by waiting over a year
17 after being notified by Mr. Stamp of Ms. Miller's claim before bringing a motion to
18 disqualify, after Mr. Stamp and Ms. Miller had invested significantly in the case. The
19 evidence shows that the delay would cause extreme prejudice to Ms. Miller and
20 Mr. Stamp if the motion were to be granted now, and that the City has failed to establish
21 that the City's delays were in good faith under the totality of the circumstances.
22 Disqualification motions are equitable in nature (River West, Inc. v. Nickel, supra,
23 188 Cai.App.3d 1297, 1304, 1309) and in this case the Court finds that the balance of
24 equities is in favor of the Plaintiff under the applicable case law.
25 Each of the above reasons provides sufficient basis on which to deny the motion.
26
27
28
Date:---------
MILLER V. CITY OF CARMEl-BY-THE-SEA
r'A<::c "'-lr. fu'IQQ1;11:
The Honorable Larry E. Hayes
Judge of the Superior Court
2
[PROPOSED} ORDER
0488
0
0
1 PROOF OF SERVICE
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 December 10, 2009, I served the foregoing documents described as follows:
6 [PROPOSED] ORDER
7 on the parties in this action as follows:
8 (X)
9
by 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.
The facsimile machine I used complied with Rule 2.302 and no error was
reported by the machine.
10
Suzanne Solomon
11 Liebert Cassidy Whitmore
153 Townsend St Ste 520
12 San Francisco, CA 94107
13
Executed on December 10, 2009, at Monterey, California. I declare under
14 penalty of perjury under the laws of the State of California that the above is true and
correct.
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
Olga Mikheeva
1
PROOF OF SERVICE
0489
1
2
0
0
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF MONTEREY
3 I am e9'1Pioyed 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 December 10, 2009, I served the foregoing documents described as follows:
6 [PROPOSEDJORDER
7 on the parties in this action as follows:
8 (X)
9
10
11
12
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 //,...
13 Liebert Cassidy WMro.orA ..
153 TownsendJSt StS:.tmr
14 San Francisco,t::A94107
'..\ ' . . . . \
15
1(};2009, at Monterey, California. I declare under
16 penalty of perjury under the laws of the State of California that the above is true and
correct.
17
18
19
20
21
22
23
24
25
26
27
28
Olga Mikeeva
1
MILLER V CITY OF CARMEL-BY-THE-SEA PROOF OF SERVICE
0490
Frorr0730242 Page: 115 Date: 1214/20a0 "M
1 Michael W. Stamp, State Bar No. 72785
Molly E. Erickson, State Bar No. 253198
2 LAW OFFICES OF MICHAEL W. STAMP
479 Pacific Street, Suite One
3 Monterey, California 93940
Telephone: (831) 373-1214
4 Facsimile: (831)373-0242
5 Attorneys for Plaintiff
Jane K1ngsley Miller
6
7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
17
18
Case No. M99513
Complaint filed June 17, 2009
EX PARTE APPLICATION FOR ORDER
PERMimNG FlUNG OF PLEADING
UNDER SEAL; DECLARATION OF
MICHAEL W. STAMP
Dept.: 4 (Hon. Lany E. Hayes}
EX PARTE APPLICATION
Plaintiff Jane Kingsley Miller hereby applies ex parte for an order allowing the
filing under seal of a further pleading concerning the City's Motion to Disqualify.
19
Specifically, Plaintiffs counsel requests an order allowing Plaintiff to file under seal a
20
pleading that addresses the City's production of additional pages from a 1992
21
personnel matter involving an employee at a City location outside City Hall. The City
22
produced these documents for the first time by attaching partially redacted versions to
23
the Declaration of Heidi Burch, dated November 13, 2009, filed as part of the City's
24
supplemental briefing on sabstantial relationship and delay.
25
26
This application is made on the grounds that, in addressing whether there is a
substantial relationship between that 1992 matter and the present case, Plaintiffs
27
counsel will show to the Court that the context of specific aspects of the former
28
MILlER V. CITY OF CARMEL-BY-THE-SEA
CASE No. M99513
1
Ex PAATI: APPLICATION
FOR ORLJER PERMITTING FILING OF' PLEALJING UNtlER SEAL
0491
Page: 215 Date: 1214/2oo0 PM
1 representation (as evidenced by the documents) is not related to the specific aspects of
2 the current representation. A substantial relationship exists only when confidential
3 information obtained in the former representation is material to the current
4 representation. (Faughn v. Perez {2006) 145 CaLApp.4th 592, 604-605.)
5 In this case, although Plaintiff's counsel represented the City on part of this
6 personnel matter, that fact alone does not mean that he obtained confidential
7 information that he can now use to the Plaintiff's advantage in the current case. To
8 make a detailed comparison of the specific facts of the fonner representation and the
9 current case in establishing a lack of similarity, it will be necessary for Plaintiff's counsel
1 0 to file the pleading addressing these documents under seal to protect the privacy of the
11 former employees.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Dated: December 4, 2009
MILLER V. CnY OF CARMEIA!Y-THE-SEA
CASE NO. M99513
LAW OFFICES OF MICHAEL W. STAMP
Attorneys for Plaintiff,
Jane Kingsley Miller
2
Ex PARTE APPLICATION
FoR ORt>ER PERMITTING FlUNG OF Pl.cAmNC: IJNnFI> !'ll=AJ
0492
Page: 315 Date: 1214/2000 ?M
1 DECLARATION
2 I, Michael W. Stamp, declare as follows:
3 I have personal knowledge of each of the facts stated below, and the opinions
4 stated in this Declaration are based upon my knowledge, experience, skill, education
5 and training. I could testify competently to each of the statements contained in this
6 Declaration.
7
a
1.
2.
I am the attorney for Plaintiff Jane Kingsley Miller.
On October 30, 2009, I appeared at a scheduled hearing in this matter in
9 Department 4 of the Superior Court. At that time, I was given a set of 106 pages of
10 documents that the City represented to be identical to the ones filed under seal on or
11 about October 28, 2009 in this Court.
12 3. In chambers and in open court on October 30, 2009, the Honorable Larry
13 E. Hayes, Judge of the Superior Court. stated in substance that an ex parte application
14 for an order permitting Plaintiff to file documents under seal could be submitted to the
15 Court for consideration if such an order became reasonably necessary in order to
16 protect privileged or confidential information.
17 4. Two of the 106 pages are duplicates of the pages, so there are 104 pages
18 of material. The City has now produced a few additional pages, which relate to a claim
19 made by a City employee In 1992.
20 5. Plaintiff seeks an order allowing the filing under seal only of a pleading
21 that would necessarily identify employees who were involved in this matter, and who
22 may have privacy interests that would be unduly affected by the public disclosure. .
23 I declare under penalty of perjury that the foregoing is true and correct and that
24 this Declaration is executed under penally of perjury under the laws of the State of
25 California this 4th day of December, 200 .in Monterey, California.
26
27
28
MillER v. Cm" OF CAAMELI!YTHE5EA
CASE No.
Michael W. Stamp
a
EX PARTE APPLICATION
FOR 0ROi;R PERMITTING FI!.ING OF F'l.f.ADING SeAL
0493
From:030242
Page: 4/5 Date 12141200s0 "M
1
2 POINTS AND AUTHORITIES
3 The newly-discovered few pages of documents do not in themselves establish
4 that there is a substantial relationship between Mr. Stamp's former representations of
5 the City and his current representation of Ms. Miller. The appropriate legal test requires
6 far more than mere similarity of subject matter or the mere exposure to the confidences
7 of the former client. (See, e.g., Faughn v. Perez, supra, 145 Cai.AppAth 592, 608-609;
8 Roush v. Seagate (2007) 150 Cai.App.4th 210, 219.)
9 The rule for determining when a substantial relationship exists was clearly stated
1 0 in Faughn:
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
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28
[S]uccessive 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.
(Faughn v. Perez, supra, 145 Cai.App.4th 592,604-605, underlining added for
emphasis.) For a "substantial relationship" to exist, there must be a "substantial risk
that the present representation will involve the use of confidential Information acquired
in the course of the prior representation." (ld., at p. 605.)
Filing documents under seal will allow Plaintiff to discuss the context of this 1992
personnel matters in order to give the Court the information it needs and which the City
MILI.ER V. CI'!Y OF CARMEL-BY-THE-SeA
CASS No. M99613
4
Ex PAR'TE API'\JCA'TION
FOR ORDER PERMITTING FlUNG OF Pi.EADING UNDER SEAL
0494
Page: 515 Date: 121412oo0 "M
1 has not provided because, as the City concedes, the City does not know the context
2 and has lost its documents.
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Dated: December4, 2009
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MILLERV. CrTY OF
CASE No. M99513
Respectfully submitted,
LAW OFFICES OF MICHAEL W. STAMP
n
Attorneys for Plaintiff,
Jane Kingsley Miller
5
Ex PARTE APPLICATION
FOR ORDER PERMITTING FlUNG OF PlEADING UNI.lER SEAL
0495
From: ! Page: 111 Date: 121412009 sO PM
1 Michael W. Stamp, State Bar No. 72785
Molly E. Erickson, State Bar No. 253198
2 LAW OFFICES OF MICHAEL W. STAMP
479 Pacific Street, Suite One
3 Monterey, California 93940
Telephone: (831) 373-1214
4 Facsimile: (831) 373-0242
5 Attorneys for Plaintiff
Jane Kingsley Miller
6
7
8
SUPERIOR COURT OF THI: STATE OF CALIFORNIA
COUNTY OF MONTEREY
9 JANE KINGSLEY MILLER.
10 Plaintiff,
11 v.
12 CITY OF CARMEL-BY-THE-SEA, and
DOES 1 through 100,
13
14
15
Defendants.
I
Case No. M99513
Complaint filed June 17, 2009
[PROPOSED] ORDER GRANTING EX
PARTE APPLICATION FOR ORDER
PERMITIING FILING OF PLEADINGS
UNDER SEAL
. Dept.: 4 {Hon. Larry E. Hayes)
16 Having read and considered the application requesting an order permitting filing
17 of a pleading under seal. and good cause appearing therefor,
18 IT IS ORDERED THAT:
19
20
1.
2.
The application is granted.
The Plaintiff may fife the pleading under seal that addresses the
21 confidential personnel matter referenced in the additional documents submitted by the
22 City as part of the Heidi Burch declaration dated November 13, 2009.
23
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Dated: December ___ , 2009
MILLER V, C rrr OF CARMEL-BY-THE-SEA
CASE No. MQQ513
Judge of the Superior Court
[PROPOSED! ORDER GRANnNG Ex PARTiiAPP!.ICATION
FnFO> P!=QMITTIN'r.. INr.. nF P1 t INI'li=R
0496
From030242 Page: 112 Date: 1214120090 , ~ M
1 Michael W. stamp, State Bar No. 72785
Molly E. Erickson, State Bar No. 253198
2 LAW OFFICES OF MICHAEL W. STAMP
4 79 Pacific Street, Suite One
3 Monterey, California 93940
Telephone: (831) 373-1214
4 Facsimile: (831) 373-0242
5 Attorneys for Plaintiff
Jane Kingsley Miller
6
7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
Case No. M99513
Complaint filed June 17, 2009
FILED UNDER SEAL: DECLARATION
OF MICHAEL W. STAMP CONCERNING
DOCUMENTS INCLUDED IN CITY'S
1992 DOCUMENTS
Dept.: 4 (Hon. larry E. Hayes)
16 I, Michael W. Stamp, declare as follows:
17 1. The City has now produced some additional pages from a 1992 personnel
18 matter involving a former City employee who worked for a brief time at the Carmel
19 Youth Center. These additional pages are not referenced In the original Heidi Burch
20 declaration or as part of the moving papers on the City's notice of this motion.
21 2. In 1992, I received information from the City on this Youth Center matter.
22 The Information was limited to that particular employee, who was a lower-level clerical
23 worker who had been given a negative job evaluation. I also corresponded with the
24 employee's legal counsel, Mary-Margaret O'Connell.
25 3. In 1992, the employee filled out a form accusing her supervisor at the
26 Youth Center of inappropriate personal conduct with his girlfriend. She also claimed
27 that a second person, the acting temporary supervisor of the Youth Center had made
28 inappropriate sexual comments about a different person, and that a third person, the
MiLLERV. CITYOFCARMELaYTHE-sEA
CASE No. M99513
1
FIL!;tJ UNOER SEAL; D!Cli\RATION OF MICHAEL. W. STAMP
CONCERNING crrvs 1 9 9 ~ l'lnt'J 'u""'"'
0497
From:030242
Page: 212
Date 1214/20090 PM
1 Acting City Administrator Greg D'Ambrosio, had asked her a question about whether
2 her lawyer and not she was making the factual assertions, which the lawyer found
3 objectionable.
4 4. My best recollection is that the matter did not go to litigation or to the
5 Department of Fair Employment and Housing, that the matter was settled with lhe
6 involvement of City Attorney Don Freeman. and that the claims against the acting
7 supeJVisor and Mr. D'Ambrosio were withdrawn. There was no confidential issue or
8 question as to the application of any City policy, including the former harassment policy
9 that has been extensively rewritten over the years, or how the City would respond
10 (investigate the factual determinations). None of the persons Involved with the matter
11 has worked for the City in the past several years.
1:? 5. The City either is withholding the settlement documents and related
13 documents for this matter that would put this minor matter In context, or has destroyed
14 them sometime in the past 17 years. The destruction of City records is subject to State
15 law, Which provides a procedure for cities that requires the approval of the City Council
16 and City Attorney for the destruction of certain documents.
17 6. There is nothing about that former matter that has any bearing on the
18 Miller case. The law applicable in 1992 has developed dramatically since then, the
19 policy of the City has been rewritten without any input from me, and none of the
20 decision makers or other persons involved In the matter are still with the City. I have no
21 files or papers relating to that matter except what the City has provided on this motion.
22 I declare under penalty of that the foregoing is true and correct and that
23 this Declaration is executed under penaity of perjury under the laws of the State of
24 California this 4"' day of December, 2009, in
25
26
27
28
MIU.ERV. CllY OF CI\RMEllr!'-THE-SEA
CASE No. M99513
\
2
FilED UNOR SEAL: Decl.AAATJONOF MICHAEL W, STAMP
CONCERNlf\kl 1QQ?
0498
I
0 0
From 8313730242 Page: 112 Date: 121412009 5:16,46 PM
1 Michael W Stamp, State Bar No. 72785
Molly E. Erickson, State Bar No. 253198
2 LAW OFFICES OF MICHAEL W. STAMP
479 Pacific Street, Suite One
3 Monterey, California 93940
Telephone: (831) 373-1214
4 Facsimile: (831) 3730242
5 Attorneys for Plaintiff
Jane Kingsley Miller
6
7
8
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
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JANE KINGSLEY MILLER,
Plaintfff,
CITY OF CARMEL-BY-THE-SEA, and
DOES 1 through 100,
Defendants.
M I L L ~ R v. CITY OF CA1\Mi;.L6Y-THESEA
CASE NO. M99513
I
Case No. M99513
Complaint filed June 17, 2009
CERTIFICATE OF SERVICE
Date: December 18, 2009
Time: 8:45 a.m.
Dept.: 4 (Hon. Lany E. Hayes)
CttRTIFICATI; OF SEF\VIC!!
0499
1
2
0 0
From: 8313730242 Page: 2!2 Date: 12!412009 5:16:46 PM
PROOF OF SERVICE
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 Ste. One, Monterey, California 93940
5 On December 4, 2009, I served the foregoing documents described as follows:
6 EX PARTE APPLICATION FOR ORDER PERMITTING FILING OF PLEADING
7
8
9
10
UNDER SEAL; DECLARATION OF MICHAEL W. STAMP
FILED UNDER SEAL: DECLARATION OF MICHAEL W. STAMP
CONCERNING CITY'S 1992 DOCUMENTS
(PROPOSED] ORDER GRANTING EX PARTE APPLICATION FOR ORDER
Flt.ING OF PLEADINGS UNDER SEAL
PLAINTIFF'S CLOSING MEMORANDUM OF POINTS AND AUTHORITIES
11 IN REPLY TO CITY'S BRIEFING
12 DECLARATION OF MICHAEL W. STAMP
13 DECLARATION OF JANE KINGSLEY MILLER
14 DECLARATION OF DEBORAH E. WRIGHT
15 on the parties in this action as follows:
16 (X)
17
by 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-C242.
The facsimile machine I used complied with Rule 2.302 and no error was
reported by the machine.
18
Suzanne Solomon
19 Liebert Cassidy Whitmore
153 Townsend St Ste 520
2.0 San Francisco, CA 94107
21 Facsimile number:
22
(415) 856-0306
23
24
Executed on December 4, 2009, at Monterey, California. I declare under penalty
of under the laws of the State of California that the above is true and correct,
25
26
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28
MILlERV. CITY OF CARM!!L..1YTHE-SEA
CASE No. M99513
2
CERTIFICATE OF SERVICE
0500
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0 0
Richard C. Bolanos, Bar No. 111343
FILED
Iholan:'focwlegal.oom
Suzmmo olamon, BarNo. 169005
uolomon@lcwlegal.com
I .TEBBR.T CASSIDY WHITMORE
DEC 1 5 2009
A Profilllsional Law Corporation
CONNIE MAZZB
153 ToWIJilelld Street, Suite 520
a.EAK OF THE SUPERIOR COURT
San Francisco, CA 9!1107
OO'UlY
CARMEN B. OROZCO
TelephOne: 512300()
FIIC!lunilc: ( 41 856--0306
Attarneys fot" Defcnd31lt
CITY OF CARMEL-BY-TilE-SEA
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
JANE KINGSLEY MILLER,
Plaintiff,
v.
CITY OF CARMEL-BY-THE-sEA and
DOES 1 tbrough 100, inclusive,
Defendant
CaseNo. M99Sl3
DEFENDANT CITY OF CARMEL-BY-
THE-SEA'S SUPPLEMENTAL
OBJECTIONS TO l'LAJl.IITIFF'S
EVIDENCE :IN OPPOSITION TO CI'I'Y'S
MOTION TO DIBQUALIFY PLAINTIFF'S
COUNSEL
Date;
Tune:
Dept:
Judge;
Decem)>er 18,2009
8:45a.m.
'4
Hon. Lmy E. Hayes
Defendant City ofCarmel-by-the-Seahereby submits the following objections to the
evidence that Plaintiff wbmitted In Oppooition to City's Motion to Disqualify 011 or about
December 4, 2{)09.
OBJECTIONS TO DECEMBER 4, 2009 DECLARATION
OF MICHAEL w: STAMP
Objectfun No.1 to Stamp Decl!!f!!lion:
''On several occasions over trno yeru-s, Mr. Guillen bns told me that he has a continuing
interest in the legal profussion, and that ho has considered going back to law school to
CITY'S SUPP. OB1S. TO PLAINTIFF'S EVIDllNClliN.OPPOSITIONTO MOTION TO DISQUALIFY
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0
Richard C. Bolanos, Bar No. 111343
rbo1anos@lcw1egal.com
Suzanne Solomon, Bar No. 169005
ssolomon@lcwlegal.com
LIEBERT CASSIDY WHITMORE
A Professional Law Corporation
153 Townsend Street, Suite 520
San Francisco, CA 941 07
Telephone: (415) 512-3000
Facsimile: (415) 856-0306
Attorneys for Defendant
CITY OF CARMEL-BY-THE-SEA
0
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
SALINAS DlVISION
JANE KINGSLEY MILLER,
Plaintiff,
v.
CITY OF CARMEL-BY-THE-SEA and
DOES I through I 00, inclusive,
Defendant.
Case No. M99513
DEFENDANT CITY OF CARMEL-BY-
THE-SEA'S SUPPLEMENT AI-
OBJECTIONS TO PLAINTIFF'S
EVIDENCE IN OPPOSITION TO CITY'S
MOTION TO DISQUALIFY PLAINTIFF'S
COUNSEL
Date:
Time:
Dept:
Judge:
December 18, 2009
8:45a.m.
4
Hon. Larry E. Hayes
Defendant City of Carmel-by-the-Sea hereby submits the following objections to the
evidence that Plaintiff submitted in Opposition to City's Motion to Disqualify on or about
December 4, 2009.
OBJECTIONS TO DECEMBER 4, 2009 DECLARATION
OF MICHAEL W. STAMP
Objection No. I to Stamp Declaration:
"On several occasions over the years, Mr. Guillen has told me that he has a continuing
special interest in the legal profession, and that he has considered going back to law school to
CITY'S SUPP. OBJS. TO PLAINTIFF'S EVIDENCE IN OPPOSITION TO MOTION TO DISQUAUFY
0502
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fmish his degree. He told me he has completed two years oflaw schooL. .. " {December 4, 2009,
Stamp DecL, page 1, line 27- page 2, line 2.)
Grounds for Objection No.1:
Hearsay offered to prove the truth of the matter asserted, and for which no exception
applies {Evid. Code 120).
Objection No.2 to Stamp Declaration:
"In all four Carmel matters, my direct contact with Mr. Guillen was approved in advance
by the City Attorney, Don Freeman. Mr. Freeman was advised as to the identities of my clients
and the settlement issues. Mr. Freeman, the Carmel City Attorney for 20 years, had direct
knowledge that I was representing each of these four employees against the City's position."
{December 4, 2009, Stamp Dec!., page 4, lines 4-8.)
Grounds for Objection No.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).
OBJECTIONS TO DECLARATION OF DEBORAH E. WRIGHT
The City objects to the entire declaration on the following grounds: Lacks foundation,
speculative, states allegations not within the personal knowledge of declarant (Evid. Code,
702(a)); Irrelevant (Evid. Code 2 I 0, 350-351 ); Improper Expert Opinion (Evid. Code
800, 801. Ms. Wright's suppositions about Plaintiff's mental state are improper here, where the
court, and not Plaintiffs retained expert, must determine whether disqualifying Plaintiff's counsel
would constitute extreme prejudice, and where no legal authority supports an inquiry into
II
II
II
II
, 2 ,
CITY'S SUPP. OBJS. TO PLAINTIFF'S EVIDENCE IN OPPOSITION TO MOTION TO DISQUALIFY
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Plaintiff's mental state as part of that analysis.
Dated: December 15,2009
1!3780.2 CA2Q0..014
0
e Solomon
Attorneys for Defendant
CITY OF CARMEL-BY-THE-SEA
- 3-
CITY'S StiPP. OBJS. TO PLAINTIFF'S EVIDENCE IN OPPOSITION TO MOTION TO DISQUALIFY
0504
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PROOF OF SERVICE
I, the undersigned, 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 the date set forth below, I served the within:
DEFENDANT CITY OF CARMEL-BY-THE-SEA'S SUPPLEMENTAL OBJECTIONS
TO PLAINTIFF'S EVIDENCE IN OPPOSITION TO CITY'S MOTION TO
DISQUALIFY PLAINTIFF'S COUNSEL
on the following interested party(s) in this action:
Michael W. Stamp
Law Offices of Michael W. Stamp
479 Pacific Street, Suite One
Monterey, CA 93940
(831) 373.0242 FAX
VlA FACSIMILE CCP 1013(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 transmission(s) was reported completed
without error.
I declare under penalty of peijury that the foregoing is true and correct and of my personal
knowledge.
Executed at San Francisco, California on December 15, 2009.
1115981 CA200-<l14
- 1 - PROOF OF SERVICE
prpro
0505
0
0
MC-050
ATTORNEY OR PARTY WITHOUT ATIORNEY (Name, Stale Bat number, and ltdck8ss): FOR COURT USE ONLY
K. Harray (SBN 41978)
Kennedy, Archer & Harray
FILED
24591 Silver Cloud Court, Suite 200
Monterey, CA 93940
TELEPHONE NO.: (831)373-7500 FAX NO. (Opt;onal)c ( * 31) 373-7555
JAN 1 5 2010
E-MAIL ADDRESS (Optionel}:
ATTORNEYFORINmol Citv of Carmel-bv-the-Sea
CONNIE MAZZB
SUPERIOR COURT OF CAUFORNIA, COUNTY OF Monterey County
ClERK OF lHE SUPERIOR COURT
-fiEPUTY
STREET ADDRESS: 1200 Aguajito Road
MAILING ADDRESS: 1200 Aguajito Road
J. CEDILLO
CITY AND ZIP CODE: Monterey, CA 93940
BRANCH NAME: Monterev Branch
CASE NAME: Miller v. City of Carmel
SUBSTITUTION OF ATTORNEY-CIVIL

CASE NUMBER:
(Without Court Order)
M99513
THE COURT AND ALL PARTIES ARE NOTIFIED THAT (name): City of Carmel-by-the-Sea makes the following substitution:
1. Fonnarlagalrepresantativa . i Partyrepresentedself '][] Attomey(name):Liebert Cassidy Whitmore
2. New legal representative I Party is representing self" ! X i Attorney
a. Name: Richard K. Harray b. State BarNo. (if applicable): 41978
c. Address (number, street, city, ZIP, and law finn name, if applicable): Kennedy, Archer & Harray
24591 Silver Cloud Court, Suite 200
Monterey, CA 93940
d. Telephone No. (include area coda): (831) 373-7500
3. The party making this substitution is a ==:J plaintiff DC defendant C petitioner : ' respondent
'NOTICE TO PARTIES APPLYING TO REPRESENT THEMSELVES
Guardian Personal Representative Guardian ad litem
Conservator Probata fiduciary Unincorporated
Trustee Corporation association
: other (specify):
If you are applying as one of the parties on this list, you may NOT act as your own attorney in most cases. Usa this fonn
to substitute one attorney for another attorney. SEEK LEGAL ADVICE BEFORE APPLYING TO REPRESENT YOURSELF.
NOTICE TO PARTIES WITHOUT ATTORNEYS
A party representing himself or herself may wish to seek legal assistance. Failure to taka
timely and appropriate action in this case may result in serious legal consequences.
4. I consent to this substitution.
Date: January 12 , 2010
Rich Guillen. City Administrator
ITYPEORPRINTNAMEpn behalf of City of

Carmel
5. _X .. I consent to this substitution.
Date: January JLJ , 2010
Richard C. Bolanos
(TYPE OR PRINT NAME)
6. . X . I consent to this
Date: January ;:.t--, 2010
Richard K. Harray
(TYPE OR PRINT NAME)
Form Adoplecl For Man:iatory Use
Judidal Council of California
MC-050 fRev. January 1, 2009]
(See reverse for proof of service by mail)
SUBSTITUTION OF ATTORNEY-CIVIL
(Without Court Order)
(SIGNATURE OF PARTY)
Page1 ot 2
Code of Civil Proce<t.n, 284( 1 ), 285;
Cal. Rules ofCout, rule 3.1362
0506
0

1 PROOF OF SERVICE
2 I am a resident of the County of Monterey. I am over the age of eighteen ( 18) years and not a
party to the within above-entitled action; my business address is 24591 Silver Cloud Court, Suite 200,
3 Monterey, California 93940. I am readily familiar with my employer's business practice for collection
and processing of correspondence for mailing with the United States Postal service.
4
On the date written below, following ordinary business practice, I served a copy of the following
5 documents:
6 SUBSTITUTION OF ATTORNEY
7 by serving on the parties or their attorney of record in this action listed below by the following means:
8
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[X]
[ 1
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[ 1
[X 1
BY MAIL. By placing each envelope (with postage affixed and pre-paid thereto) in the U.S.
Mail at the law offices of Kennedy, Archer & Harray, 24591 Silver Cloud Court, Suite 200,
Monterey, CA 93940, addressed as shown below. I am readily familiar with this firm's practice
for collection and processing of correspondence for mailing with the U.S. Postal Service and in
the ordinary course ofbusiness, corres{l<>ndence would be deposited with the U.S. Postal Service
the same day it was placed for collectiOn and processing.
BY HAND DELIVERY. By causing a true copy thereof, enclosed in a sealed envelope, to be
delivered by hand to the address(es) shown below.
BY OVERNIGHT DELIVERY. By J?lacing with Federal Express for delivery a true copy
thereof, enclosed in a sealed envelope, w1th delivery charges to be billed to Kennedy, Archer &
Harray, to the address(es) shown below.
BY FACSIMILE TRANSMISSION. By transmitting a true copy thereofby facsimile
transmission from transmission number (831) 373-7555 to the interested party(ies) or their
attorney of record to said action at the facsimile number(s) shown below.
BY E-MAIL/ELECTRONIC TRANSMISSION. Based on a court order or an agreement of
the parties to accept service by e-mail or electronic transmission, I caused the documents to be
sent to the persons at the e-mail addresses listed below. I did not receive, within a reasonable
time after the transmission, any electronic message or other indication that the transmission was
unsuccessful.
Attorney for Plaintiff:
Michael W. Staml'
Law Offices ofM1chael W. Stamp
4 79 Pacific Street, Suite I
Monterey, CA 93940
Tel: 831-373-1214xll
Fax: 831-373-0242
stamp@stamplaw.us
Kennedy. Arche< 28
& Harrny
Attomeysatl..aw .. J I I - - - - - - - - - - - - - - - - - - - ~ : _ ____________ _
24591 Silver Cloud r ...
Ste. 200
Monterey, CA 93940
0507
1 Michael W. Stamp, State Bar No. 72785
Molly E. Erickson, State Bar No. 253198
2 LAW OFFICES OF MICHAEL W. STAMP
479 Pacific Street, Suite One
3 Monterey, California 93940
Telephone: (831) 373-1214
4 Facsimile: (831) 373-0242
5 Attorneys for Plaintiff
Jane Kingsley Miller

FILED _
CONNIE MAZZEI, CLERK OF THE COURT

6
7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
9 JANE KINGSLEY MILLER,
10 Plaintiff,
11 v.
12 CITY OF CARMEL-BY-THE-SEA, and
DOES 1 through 100,
Defendants.

Case No. M99513
Complaint filed June 17, 2009
ORDER AFTER HEARING
Date: December 18, 2009
Time: 8:45a.m.
Dept.: 4 (Hon. Larry E. Hayes)
13
14
15
16
Defendant City of Carmel-by-the-Sea's Motion to Disqualify Plaintiffs Counsel
17
came on regularly for hearing in Department 4 on December 18, 2009, the Honorable
18
Larry E. Hayes presiding. Suzanne Solomon appeared on behalf of the City of Carmel-
19 by-the-Sea. Michael W. Stamp and Molly Erickson appeared on behalf of Plaintiff Jane
20
Kingsley Miller.
21
The Court, being fully advised and having considered the arguments and
22
evidence presented, and having reviewed all matters submitted by the parties to the
23
Court, hereby
24
ORDERS, ADJUDGES and DECREES that the motion to disqualify plaintiffs
25
counsel is DENIED, for each and every of the following grounds:
26
Plaintiff presented evidence, including the declarations of the City's former top
27
administrators and the City's personnel officer, that provided helpful context for
28
evaluating the former representations of the City by Mr. Stamp under the prevailing
MILLER V. CITY OF CARMEL-BY-THE-SEA
CASE NO. M99513
1
ORDER AFTER HEARING
I
0508
0
1 case law. The declarations submitted by Plaintiff included those of two former City
2 Administrators, the former personnel director, Mr. Stamp, and Ms. Miller. The City
3 conceded on oral argument that it had contacted one of the former City Administrators
4 and the former personnel director, but the City did not present any evidence of the
5 content of those discussions, and did not disclose the contacts until the third oral
6 argument on this motion. The City did not carry its burden to prove that confidential
7 information Mr. Stamp received in the former representations is materially related to the
8 current representation (Faughn v. Perez (2006) 145 Cai.App.4th 592, 604-606) and that
9 Mr. Stamp could now use this information to the advantage of Ms. Miller and to the
10 disadvantage of the City in this case (/d., at p. 61 0).
11 Even if there had been a substantial relationship, that does not end the Court's
12 inquiry. Unjustified delay in bringing a motion to disqualify can result in waiver of the
13 claim of conflict or an implied consent to the conflict. (River West, Inc., v. Nickel (1987)
14 188 Cai.App.3d 1297, 1310; Zador Corp. v. Kwan (1995) 31 Cai.App.4th 1285, 1302.)
15 The City had actual knowledge of any claim of a potential conflict beginning in
16 2003 when Mr. Stamp represented the first senior City employee in his employment
17 claims against the City. Between 2003 and 2008, Mr. Stamp represented an additional
18 three senior City employees in their employment claims against the City. In none of the
19 situations did the City raise or assert an issue of conflict, either directly or indirectly. In
20 May 2008, Mr. Stamp advised the City that he was representing Jane Miller in her
21 claims against the City, and the City did not raise or assert an issue of conflict, either
22 directly or indirectly. The City's first reference to a conflict claim came in September
23 2009 when the City filed the present motion.
24 The City impliedly consented to and, separately, waived any objection to Mr.
25 Stamp's representation in the present case. The City did so first by not claiming a
26 conflict when Mr. Stamp, over a period of five years, represented four senior City
27 employees with claims similar to Ms. Miller. Separately, after being notified by Mr.
28 Stamp of Ms. Miller's claim, the City waited over a year before bringing a motion to
MILLER V. CITY OF CARMEL-BY-THE-SEA
CASE NO. M99513
2
ORDER AFTER HEARING
0509
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1 disqualify. During that time Mr. Stamp and Ms. Miller had invested significantly in the
2 case and in Mr. Stamp's representation of Ms. Miller. The City did not advise Ms. Miller
3 or Mr. Stamp at any time before bringing this motion that the City contended that there
4 was a conflict.
5
6
7
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The City failed to prove that the City performed a reasonable investigation into
the potential merits of motion by intervie\'{ing the key City personnel,
V""IVI ,::;11'1hS, b ner
including the City Attorney. T-..City's assertion that the actual knowledge of material
1\
facts by the City Attorney need not be inquired into by the City's lawyers or disclosed by
the City in regard to this motionje di&iAgenttces. The Court finds that City Administrator
Richard Guillen and City Attorney Don Freeman knew about the former representations
during the pertinent time period. The weight of the evidence shows that those
individuals would have had specific knowledge about those former representations and
about whether there was a conflict with the current representation.
The Court recognizes that the City's representatives did not offer a declaration
from City Attorney Don Freeman regarding any knowledge of Mr. Stamp's prior
representation of the City, nor did the representatives provide direct testimony from Mr.
Freeman in an appearance before the Court in this matter; therefore a comment
regarding "disingenuous was not in any way intended to infer, suggest or imply any
19 reference specific to Mr. Freeman.
20 Even if the delay only started in May of 2008, when Mr. Stamp sent the first letter
21 to the City on plaintiffs behalf, there is still an extreme delay from that time, before the
22 City raised a claim of conflict. The City's primary contention on the motion that the City
23 had no ability to raise a conflict until this lawsuit was actually filed is not credible, and
24 the City presented no applicable legal authority for its position. The City's other
25 contentions are not credible, and are contradicted by the testimony offered by Plaintiff
26 and by the documentary evidence presented. The City's delay caused extreme
27 prejudice with regard to the time and effort put into the case, the money paid by the
26
MILLER 'I. CITY OF CARMEL-BY-THE-SEA
CASE NO. M99513
3
0ROER AFTER HEARING
0510
1 plaintiff to Mr. Stamp out of her retirement funds, and the plaintiffs emotional state,
2 which the Court finds to be relevant.
3 The weight of the evidence, including the declaration of Dr. Deborah Wright.
4 Ph.D., shows that the delay would cause extreme prejudice to Ms. Miller and Mr. Stamp
5 if the motion were to be granted, and that the City has failed to establish that the City's
6 delays were in good faith under the totality of the circumstances.
7 Disqualification motions are equitable in nature (River West, Inc. v. Nickel, supra,
8 188 Cai.App.3d 1297, 1304, 1309). In this case, the Court has fully and carefully
9 considered the evidence, drawn inferences, weighed the evidence, determined the
1 0 credibility of the declarants, and found that the balance of equities is in favor of the
11 Plaintiff under the applicable case law.
12 Each of the above reasons provides sufficient basis on which to deny the motion,
13 and the motion is denied for each and every of those reasons.
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Date:

.c...Ao"'-4-/...,0'----
25 Dated: February 1, 2010
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MILLER V. CITY OF CARMEL-BY-THe-SEA
CASE No. M99513
4
ORDER AFTER HEARING