P. ex rel. Spitzer v. AWI Builders, Inc.
G059795A
| Cal. Ct. App. | Jun 24, 2022Background
- In 2015 OCDA and RCDA executed search warrants at AWI Builders and seized documents, computers, and other electronic media; defense counsel immediately asserted attorney-client privilege/work-product protections.
- A private special master (Alan Brown) reviewed hard-copy materials in 2016, sealed a small number of privileged items, and those envelopes remained in secure storage; a partial taint review of computers occurred but imaging remained secured and was later returned to defendants.
- OCDA declined to file criminal charges in 2017 and reassigned the matter to Deputy D.A. Kelly Ernby for a civil UCL prosecution; Ernby was walled off from prior investigators and received the investigatory file (with privileged items excluded).
- AWI moved to recuse/disqualify Ernby, retired DA McCament, and the entire OCDA, alleging (inter alia) improper review/use of privileged materials and that Ernby threatened criminal prosecution of defense participants.
- The trial court ordered supplemental briefing and declarations, found no substantial evidence OCDA attorneys had reviewed privileged materials or otherwise created a conflict making a fair trial unlikely, and denied the recusal motion.
- The Court of Appeal affirmed, holding (1) Penal Code §1424(a) governs DA recusal motions in UCL civil prosecutions and (2) an order denying such a motion is appealable under Code Civ. Proc. §904.1(a)(6); it also concluded the record did not support disqualification based on privileged‑material handling or alleged misconduct.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (AWI) | Held |
|---|---|---|---|
| 1) Governing standard for disqualification in DA civil UCL prosecution | §1424(a) governs motions to disqualify a DA from performing any authorized duty, including UCL civil enforcement. | §1424 should not govern civil UCL recusal; different standards apply. | §1424(a) applies to recusal motions against a district attorney bringing UCL civil claims. |
| 2) Appealability of an order denying a recusal motion | Denial is appealable as a refusal to grant injunctive relief under CCP §904.1(a)(6), following Meehan and URS reasoning. | Denial is not appealable (no statutory basis); appeal should be dismissed. | Denial of a §1424(a) recusal motion is appealable as an order refusing injunctive relief; alternatively reviewable by writ. |
| 3) Whether OCDA mishandled privileged materials (Rico/State Comp rule) | OCDA complied: special master sealed privileged hard copies; taint review/bookmarks secured; prosecutors who litigated the UCL did not access privileged materials; inadvertent single-page production was returned/destroyed. | OCDA improperly reviewed privileged communications (thousands of pages/electronic devices) and thereby created a disqualifying conflict. | Trial court’s findings (no evidence DA attorneys reviewed privileged materials; procedures complied with Rico/State Comp) are supported by substantial evidence; no disqualification. |
| 4) Whether alleged prosecutorial misconduct or threats required recusal of Ernby/OCDA | Alleged past misconduct was committed by other prosecutors who were walled off; Ernby had no involvement in prior investigation and there is no systemic conflict or structural incentive to bias the office. | Alleged threats to intimidate witnesses/counsel and other alleged misconduct show grave conflict making fair proceedings unlikely. | Allegations (including threats) were denied by Ernby and unsupported; even if true, past misconduct by replaced individuals does not establish a likelihood of unfair treatment by the current DA team; no recusal. |
Key Cases Cited
- Packer v. Superior Court, 60 Cal.4th 695 (2014) (describes §1424(a) burden, two-stage procedure, and conflict standard for DA recusal)
- Meehan v. Hopps, 45 Cal.2d 213 (1955) (denial of disqualification construed as refusal to enjoin counsel and is appealable)
- URS Corp. v. Atkinson/Walsh Joint Venture, 15 Cal.App.5th 872 (2017) (applied Meehan to attorney‑disqualification appealability and explained injunctive-nature rationale)
- Rico v. Mitsubishi Motors Corp., 42 Cal.4th 807 (2007) (rule for counsel who inadvertently receives privileged materials: minimal review and prompt notice)
- State Comp. Ins. Fund v. WPS, Inc., 70 Cal.App.4th 644 (1999) (applied and explained procedures for inadvertent disclosure of privileged materials)
- People v. Bryant, Smith & Wheeler, 60 Cal.4th 335 (2014) (past misconduct by removed prosecutors does not alone show present-office inability to prosecute fairly)
- Haraguchi v. Superior Court, 43 Cal.4th 706 (2008) (standard of review for recusal rulings: abuse of discretion and substantial‑evidence review)
- City & County of San Francisco v. Cobra Solutions, Inc., 38 Cal.4th 839 (2006) (Penal Code §1424 does not apply to civil actions by city attorneys)