City of San Diego v. Superior Court of San Diego Cnty.
30 Cal. App. 5th 457
Cal. Ct. App. 5th2018Background
- Detective Dana Hoover sued the City of San Diego for harassment and retaliation; Daniel Gilleon was her counsel in that lawsuit.
- An unrelated claim by Gilleon in 2017–2018 prompted media coverage of a confidential police report, triggering an internal affairs investigation into a leak that focused on Hoover.
- Hoover was ordered to attend internal affairs interviews and told refusal could lead to discipline; she invoked the attorney-client privilege when asked about communications with Gilleon but, under pressure, answered some questions at a March 22 interview while represented by a different attorney for the interview.
- A deputy city attorney observed and at times questioned Hoover without Gilleon’s consent; Hoover later moved to disqualify the San Diego City Attorney’s Office and the trial court granted disqualification.
- The Court of Appeal found the interview violated the attorney-client privilege and former Rule 2-100 but reversed the disqualification because the sealed transcript showed no privileged content that could give the City a continuing litigation advantage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether investigators violated the attorney-client privilege by pressing Hoover to disclose contents of a call with her lawyer | Hoover: interviewers forced disclosure of privileged communications; privilege was invoked and questioning should have stopped until court ruled | City: either communications were not confidential or were unrelated to Hoover’s lawsuit so privilege did not bar questioning | Held: Privilege was invaded; questioning should have been suspended and the court (not investigators) must resolve such claims |
| Whether a deputy city attorney’s direct questioning violated former Rule 2-100 (no contact with represented party) | Hoover: Milligan’s questions to Hoover about litigation subjects violated Rule 2-100 and required disqualification | City: presence was permissible as observer and questions were narrow or unrelated to the lawsuit | Held: Milligan’s direct questioning without consent violated former Rule 2-100 |
| Whether disqualification of the City Attorney’s Office was an appropriate remedy for the violations | Hoover: violation of privilege and Rule 2-100 warranted disqualification of the entire City Attorney’s Office to protect judicial integrity | City: disqualification is drastic and unnecessary if no privileged information was obtained that could affect the litigation | Held: Disqualification was improper because transcript showed no disclosure that could likely be used advantageously or have a substantial continuing effect on the litigation |
| Whether the court may examine the interview transcript to assess whether disqualification is required | Hoover: content is privileged so court should not probe communications to decide remedy | City: where remedy hinges on whether any usable privileged content was actually disclosed, court may review known facts (sealed transcript) to assess continuing effect | Held: Court may consider the known content (sealed transcript) to determine whether misconduct produced a genuine likelihood of unfair advantage; here it did not |
Key Cases Cited
- Gregori v. Bank of America, 207 Cal.App.3d 291 (disqualification is prophylactic; warranted only if status/misconduct likely affects future proceedings)
- Costco Wholesale Corp. v. Superior Court, 47 Cal.4th 725 (party invoking privilege bears initial burden; court will not force disclosure to test privilege)
- Los Angeles County Bd. of Supervisors v. Superior Court, 2 Cal.5th 282 (definition and scope of attorney-client privilege)
- City and County of San Francisco v. Cobra Solutions, Inc., 38 Cal.4th 839 (balancing costs of disqualifying public law offices; court’s authority to regulate counsel)
- Chronometrics, Inc. v. Sysgen, Inc., 110 Cal.App.3d 597 (misconduct must have continuing effect on proceedings to justify disqualification)
- DP Pham, LLC v. Cheadle, 246 Cal.App.4th 653 (procedural requirement that privilege disputes be resolved by court before disclosure)