PLAINTIFF'S CLOSING MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY JANE KINGSLEY MILLER v. CITY OF CARMEL-BY-THE-SEA (M99513) 2009.pdf

7/28/2019 PLAINTIFF'S CLOSING MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY JANE KINGSLEY MILLER v. CITY OF CA

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1 Michael W. Stamp, State Bar No. 7278;;;Molly E. Erickson, State Bar No. 2531982 LAW OFFICES OF MICHAEL W STAMP479 Pacific Street, Suite One3 Monterey, California 93940Telephone: (831) 373-12144 Facsimile: (831) 373-02425 . Attorneys for Plaintiff6 Jane Kingsley Miller789

SUPERIOR COURT OF THE STATE OF CALIFORNIACOUNTY OF MONTEREY

101112

JANE KINGSLEY MILLER,Plaintiff,

v.CITY OF CARMEL-BY-THE-SEA, and

13 DOES 1 through 100,14 Defendants.15161718

- - - - - - - - - - - - ~ - - - - ~ - - ~ '

Case No. M99513Complain t filed June 17, 2009

Date: December 18, 2009Time: 8:45 a.m.Dept.: 4 (Hon. Larry E. Hayes}

19 PLAINTIFF'S CLOSING MEMORANDUM OF POINTS AND AUTHORITIES20 IN REPLY TO CITY'S BRIEFING2122232425262728

MILLER v. crrv OF C A R M e L . . . , Y ' f H ~ . . S E ACASE No. M99513 CLOSING MEMORANOUM OF POINTS o\ND A l . m < O R ! T I ~ SIN REPLVTO CITY'S BRlEFING


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TABLE OF CONTENTS

I. THE CITY FAILED TO MEET ITS BURDEN OF PROVING A3 DISQUALIFYING CONFLICT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

.67

A.B.

C.

The City's Showing- the Burch Declaration . . . . . . . . . . . . . . . . . 1The City's Motion to Disqualify is Strategic- the City Seeks toAvoid a Result in Litigation That Is Not "Positive for the City,"Not Because There Is Any Material Confl ict . . . . . . . . . . . . . . . . . . . . 4The City's Evolving Stories on the Six-Year Delay Are Not Credible . . . . 5

8 II. THE CITY IS BARRED FROM ASSERTING ITS CLAIM UNDER9

101112131415

16171819 !202122232425 '262728

EQUITABLE PRINCIPLES OF DELAY AND EXTREME PREJUDICE....... 8A. The City Delayed Six Years ................................. 8B. Disqualification Would Cause Extreme Prejudice to Ms. Miller . . . . . . . 10

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . 13

MILLER V CITY OF CAAMI!lBYTHE:-sEA, CAsE No. M99S13 ClOSING MEMORANCUM OF' POINT$ AND AUTHORillE$IN REPL fT D CITY'S flRIEFING


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TABLE OF AUTHORITIES

Farris v. Fiffilman's Funa Insurance Company (2004) 119 Cai.App.4th 671 . . . . . . . . . 33 Faughn v. Perez (2006) 145 Cai.App.4th 592 . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 44 Hr11eby v. FMC Corp (ND Cal., 1992) 1992 U.S. Dist. LEXIS 20835 .............. 95 Image Technical Services v. Eastman Kodak6 (N.D. Cal., 1993) 820 F. Supp. 1212 ...................................... 97 River West, Inc. v. Nickel (1987) 188 Cai.App.3d 1297 ........................ 9 ,8 Santa Teffilsa Citizen Action Group v. City ofSan Jose(2003) 114 Cai.App.4th 689 ......................................... 12910111213141516171819202122

23 '2425262728

ZadorCorporation v. Kwan (1995) 31 Ca1App.4th 1285 ................ 5, B, 9, 10

Mlu.ER v. CrTYOF CARMEL-B'I'-rnE.SEACASE No. 11199513

iiCLOSING ME:IIIMANDUM OF POiNT$ ANO AuTHORITIES

IN REF'l'!' TO Cnv's ~ I E F I N G


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1 This memorandum responds to the City's November 17, 2009 briefing on the2 City's claims of conflict and on the City's delay. The City has not met its evidentiary3 burden on either issue, and the motion for disqualification should be denied,456789

I.THE CITY FAILED TO MEET ITS BURDEN OFPROVING A DISQUALIFYING CONFLICT

The City's Showing - the Burch Declaration.In filing this motion on September 1, 2009, the City stated under .penalty of

p e ~ u r y that City Clerk Heidi Burch had accurately summarized the records that the Citywas relying upon for its claim of a substantial relationship between a former10

111213

representation of the City and the Jane Miller case. The Burch declaration was thefactual basis for the City's motion.

In the opposition filed October 8, 2009, Plaintiff Miller showed that Burch'sdeclaration was not admissible because there was an insufficient foundation for any14 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 City17 records, and had tentatively regarded the CH:y documents as showing such a18 substantial relationship. Because Miller's counsel had not even seen the City19 documents, much less submitted any response, the Court 's "tentative" view was202122

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's23 declaration supposedly summarizing the documents was materially false, stretched and24 exaggerated the truth, and grossly mischaracterized documents In an effort to fit them252627

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 fact28 intend to mislead the Court and opposing counsel. (City's Reply on Substantial1MILLER V. C r T Y ~ O F CARME1.9Y-THE-SEA

CASE No. M99513C ~ O S I N G MEM


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1 Relationship, filed November 17, 2009.) In its memorandum, the City abandons2 Burch's claims about the substantial relationship of former matters, and instead argues3 about (1) a 1989 harassment policy that ML Stamp reviewed in 1991, and which has4 been completely rewritten by the City since then, and (2) a 1992 sexual harassment5 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 policy7 reviewed by Stamp in 1991 is the current policy that affects Jane Miller. The City's8 carefully worded argument is, at best, misleading. Attached as Exhibit A to this9 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 the11 City since then. There is no substantial relationship under the law between a 199112 review of a former policy and a 2009 claim under a different policy that has been13 comprehensively rewritten by the City.14 The 1992 sexual harassment claim now heavily reUed upon by the City erose 1715 years ago under a temporary Acting City Administrator, was factually investigated by16 the City, and resolved at the time. None of the decision makers from that brief episode17 has been employed by the City tor years, and the policy upon which the claim was18 based is a materially different City policy than the one applicable to Jane Miller. The19 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 the21 claimant said that she observed being done or said by other co-wooers (the most22 sensational of which was later withdrawn). (Stamp Dec!., filed under seal, dated23 December 4, 2009.113.) The only confidential information relating to that case was in24 the particular facts of the employees' actions.25 The City never identifies how the City's strategy or efforts 17 years ago in that26 factual situation is in any way material to the current representation, 1 The City2728 1 The City hints at the idea that the 1989 haras:;ment policy ana the 1992harassment claim are like a "playbook" of the City's defense strategies, The Court in

2MIW!F


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1 apparently has destroyed the remaining file associated with that claim, and has given2 the Court no infonnation about the context or the actual circumstances of the3 representation. The City's showing is based upon a few documents that the City claims4 to have located only within the past month, well after the current motion was filed and5 briefed by all parties. The City's showing does not meet the substantial evidence6 requirement fo r disqualification of counsel. (Faughn v. Perez (2006) 145 Gai.App.4th7 592, 609 [without evidence to connect the facts of the current representation to the8 fonner representation, court will not infer it exists].}9 Also missing from the City's brief is anything other than the most superficial10 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 at12 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 of14 disqualification is to prevent the use of the former client's confidences (obtained15 through the former representation) to the fanner client's detriment in the CUITent16 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 deep19 factual inquiry and a solid, well-supported showing of the danger that confidential20 information adverse to former clients is at stake.212223242526

[S]uccessive representations will be 'substantially related'when the evidence before the trial court supports a rationalconclusion that information material to the evaluation,prosecution, settlement or accomplishment of the fonnerrepresentation given its factual and legal issues is !i!ISOmaterial 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 C A F < ; : ; ; M ; ; ; e : : - L - B Y = - : ; ; T H ~ e " - S e ~ A - - ' - - - - - " - - : c : o : L - : : a s ~ I " " ' N G : : : - u M ; ; : : e M O R A N = ~ o : : : : u ~ M ; - ; o ' ; F " P : : : : o : : - , N T = s = - ...NO=Ai.ITHORITIESCAse No. M99513 IN REPLY TO Cm'$ BRIE.l'ING


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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 for4 emphasis.) A "substantial relationship" sufficient to disqualify counsel requires that5 there be a "substantial risk that the present representation will involve the use of6 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 is6 immaterial to the Miller case. The fact-based claim of a worker in 1992 is similarlyg immaterial as a matter of law. (See Faughn v. Perez, supra, 145 Cai.App.4th 592,

10 609).11 B.1213 For the past three months, Jane Miller has been asserting that the City's14 disqualification motion is tactical, not substantial. Ms. Miller has focused on how the15 City did not object in any way at any time during a six year period when Mr. Stamp16 represented four separate senior City employees in similar claims against the City, did17 not object in any way for 16 months when Mr. Stamp represented Ms. Miller, and only16 1 objected by filing the motion to disqualify after the Compla int was filed, interrogatories19 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 case21 started moving to trial.22 Plaintiff has shown through a detailed review of the evidence that there is no real23 conflict. She has asserted that the 2003-2008 representations were on cases nearly24 identical to the current one. and that the City did not raise any objections because the25 City did not have anv basis ford sgualificatioo. and could not justify one under the law.26 She also has focused on the extraordinary delay, the extreme harm to Ms. Miller, and27 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. C i l Y O ~ C A R M E L 6 Y ~ T H E - S E ACASE NO. M995134

CLOSING MEMORANDUM OF POINTS AND AulHO!UfiESIN REPLY TO C1TYS BFIII!FING


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1 Guillen has now admitted under penalty of e ~ u r y that the City voluntarily chose to2 accept the representations by Stamp of four senior employees from 2003 to 20063 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 that5 "I viewed Mr. Stamp's involvement as beneficial for the City, because he was facilitating6 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 to8 larger long term retirement payments}, no one at the City cared about any claims of9 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 mind11 and started looking for ways to disqualify Plaintiffs counsel.12 The appellate courts frequently warn the trial courts that motions for13 disqualification are disfavored, and that it "is widely understood by judges that attorneys14 now commonly use disqualification fo r purely strategic purposes , . . . (Zador15 Corporetlon v, Kwan {1995) 31 Cai.App.4th 1285, 1302-1303 [Sixth District case16 reversing order for disqualmcation).} The City's neN>I admission is that the City saw no11 conflict about Stamp's role so long as the City was getting something it wanted. That is18 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 City24 responded by (1) making a frivolous claim that the City "could not have moved to25 disqualify'' counsel because there was no pending litigation until June 2009 (City's26 Reply Brief, October 15, 2009, p. 10, lines 5-9); and (2) supporting that claim only with a27 misleading and deceptive editing of the authorities relied upon by the City, editing out28 the meaning of the quote in order to reverse the meaning of the case law.

MiLLeR v. Cm' oF CARMEL-ElY-THt-SEACASe No, M995135

CLOSING MEMORANOUM or PotN'TS AND AUTliORmesil l E ~ L Y TO CiTY'S BRIEFlNG


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1 Because that claim by the City was mentless, the City then tried to claim that the2 2003 to 2008 representation of four senior City employees by Mr. Stamp did not involve3 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, Miller5 demonstrated tl1at the City was not telling the truth, that t11e employees raised claims of6 a 'hostile' work environment and of gender-based discrimination, as well as c:laims of7 forced retirement, and that t11e emails relied upon by Guillen as proof did not say what8 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 earlier12 representation of the City while he was the City Administrator, Guillen never asked for13 "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 between16 2003 and 2008, he has "no legal training," so he did not know that he could claim that17 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, City20 Administrator, City CounciL and Mayor all koew of the representations of the four21 employees from 2003 to 2008. Second, the City Administrator's alleged lack of22 communication with Mr. Bolanos means notl1ing; the outside fimn was on retainer and23 available, Mr. Bolanos's law partner worked closely with the City and had been the24 City's personnel counsel for years, The City's choice to not inquire about the issue is25 not an excuse. Third, the City never even mentions that it has a City Attorney, Don26 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 about28 Stamp's representation of tl1e City, and even signed of f (with Stamp) on two of the

MILLER V. CITY OF C A R M ~ L - ! l V - T H E - S E ACAS!! No, M995136

ClOSING MEMORANDUM OF POINTS ANO Autl


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1 settlements with Stamp's clients. It is a fair Inference that the City Attorney did not2 believe there was any conflict. because the City Attorney did not even contact Stamp3 with any issue of conflict.4 F o ; . ~ r t h , 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 experience6 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 directB involvement in extensive personnel litigation with Liebert Cassidy while Guillen worked9 as a top official in the City of Seaside Ci1y Manager's OffiCe. Guillen's legal training10 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 Guillen14 Declaration finally admits the truth of the story: Guj!!en did not object to Stamp's15 representation of the four senior City m p l ~ s for strategic reasons: "I viewed16 Mr. Stamp's involvement as bf/111!!!ficial for tbe Citv because he was facilitating early17 retirements that were saving !IJe City in personnel costs: In short, he made no Inquiry18 because he was saving money in the long term by having City employees take early19 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 claim22 of ignorance of the law says volumes about the insufficiency of the City's showing and23 the lack of credibility.24 The City admits that its current lawyers had actual knowledge in December 200825 (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 and28 confer, and (4) did not ever mention the issue.

M l ~ t . e R V. C!'TYOF C A R M E ~ - ! 3 Y - T i i E - 8 e ACA$1; Nc M995137

ClOSING MEII!O!!ANOUM OF POINTSANO AUTHORIT!EllIN R!iPI.YTO CITY'S BRIEFING


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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 the3 matter of Plaintiffs allegations . . . to be closed." (Bolanos Dec!., 'U 7. ) The claim is not4 believable. Letters from Mr. Stamp to Mr. Bolanos after February 9 consistently show5 that Ms. Miller's matter was not "closed." (Stamp Decl., W10-14 [Stamp letters of6 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 with8 an opportunity to consider settling Ms. Miller's claims'); and May 5, 2009 ("If the City9 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 she11 advanced to the City neany a year ago")].) The City had no reasonable basis to12 consider the matter "closed."13 II.14 THE CITY IS BARRED FROM ASSERTING ITS CLAIM UNDER1516171819202122

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 onthe disqualified attorney's innocent client, who must bear themonetary and other costs of finding a replacement. A clientdeprived of the attorney of his choice suffers a particularlyheavy penalty where, as appears to be the case here, hisattorney 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 litigation25 commenced. However, the Court, in assessing the prejudice, focused on how long the26 moving party knew that litigation was reasonably possible, and how long the moving27 party knew the Identity of the attorney prosecuting a claim against the former client. (3128 Cai.App.4th at 1302.) The Court found that the possibility of litigation was evident

MILLER V. CITY OF CARMEL-YTHE-SEACAsE No. M995138

CLOSING M!MORANDUM OF POINTS AND AuTHoRITieSIN RePLY TO CITY'S BRIEFING


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1 nearly three years before the motion to disqualify was filed. (Ibid.) The Sixth District2 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 raise4 the City's undue delay as a basis for this Court to deny the motion to disqualify. (City's5 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 court7 decisions (Hilleby v. FMC Corp (N.D. Cal., 1992) 1992 U.S. Dist: LEXIS 20835(patent8 case not reported in the official reporter] and Image Technical Services v. Eastman9 Kodak (N.D. Cal., 1993) 820 F. Supp. 1212 [short delay in international concurrent10 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 District12 case on point: ZadorCorporation v. Kwan, supra, 31 GaLApp.4th 1285, 1302.13 Starting in May 2008, Ms. Miller invested her time, financial resources, and14 energy into asserting claims with the attorney of her choice, knowing that the City had15 not objected to Stamp's similar representation of similarly situated employees over the16 preceding five years. The City's behavior over those fJVe years lulled Ms. Miller into17 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., '1m19 1-3.) In May 2008, she carefully selected Stamp as her attorney, and carefully20 considered whether to prosecute this litigation. (Miller Oecl., 111 5.-8.) In July 2008, the21 City was provided with Ms. Milte(s DFEH "right-to-sue letters, which are precursors to22 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 on24 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 unclean27 hands and laches. Motions to disqualify counsel are often used as a litigation tactic to28 "harass opposing counsel . . . or to Intimidate an adversary into accepting settlement on

MILLER v. CITY OF C A ~ M E L - l l Y - T H E - S E ACASE NO. M995139

CLOSING MEMORANDUM OF POIN"!'S ANO AIJTHORirii!SIN REPLY TO CITY'S BRIEFING


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1 terms that would not otherwise be acceptable." (Zador Corp. v. Kwan, supra, 312 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 the4 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 sought9 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, and11 none who would be available. (See Welsh Decl., 1!113-9; Miller Decl.,1j20; Stamp12 Decl . W 85-89. all filed October 8, 2009.)13 Second, Stamp has been working on this matter for sixteen months, providing14 advice, working with his client and other consultants and professionals, developing the15 strategy for this case, and preparing the case for litigation. As a result of more 1han 20016 attorney hours and over 240 staff hours of work on this case, the case moved forward17 efficiently, {stamp Dec!., filed October 8, 2009, 1J79.) New counsel- if one could be18 obtained- would take many months to get up to speed. {stamp Dec!., 'In! 86-87, flied19 October 8, 2009.)20 Third, it is highly unlikely that other counsel in the area would take over the case21 at this point. Miller would have to go to the Bay Area to find equally qualified counsel22 who might be available, but only at a prohibitive financial and emotional cost. (Stamp23 Decl.. W 6 ~ 8 7 ; Welsh Dec! , 'I 9, filed October 8, 2009.) It is likely that if Stamp is24 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 her28 attorney, reviewing emails to her from Guillen, preparing a chronology of events. and

MILLER v. CITY OF CARMI'L BY-THE-SEACASE No. M9951310

CLOSING MEMoRANDUM OF POINTS AND AlJlliORrTIE;SIN REPI..Y 10 CITY'$ BRIEfiNG


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1 otherwise documenting the behavior of Guillen toward her. (Miller Decl., ~ 5, Stamp2 Decl., 'IJ17-18a.) Every one of these efforts has caused Ms. Miller to suffer additional3 harm because she has had to re-experience and re-live the trauma each time. (Wright4 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., 1m6 5-6). Over the 18 months Ms. Miller has worked with Stamp, she has developed a7 trusting and tmstworthy attorney-client relationship. (Wright Decl., ~ 13; Miller Decl.,8 1 1 5 ~ . )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 or11 select a new attorney. Going out and finding new counsel would present an almost12 insurmountable challenge to Ms. MiUer. (Wright Decl. ,1f14.) A forced change of13 counsel would be costly and emotionally devastating to her. (Miller Dect., 1J6.) Even if14 she could find new counsel, Ms. Miller would find it very difficult to assist a new attorney15 in the same way she has assisted Stamp. Going over the same painful events yet16 another time, both to seek new counsel and to assist them, Is likely to be more than she17 can h ~ J n d l e . (Wright Decl., 'IJ14.)18 Ms. Miller also has been seriously harmed by the filing of the City's motion, as19 well as by the months of delay it has caused in the prosecution of her claims. (Wright20 Decl., '111112, 14-21.) As a result, her diagnosis has become more severe, her physical21 health has suffered, and she has suffered extreme stress. (Ibid.) A disqualification at22 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, she26 was In a position to stand up and try to stop him, and prevent others from suffering in2728 2 All citations to the Miller and Stamp declarations from here forward are to thedeclarations filed concurrently with this memorandum.

Mlu..ER v. CITY OF CARMEL-BYTHE-SEACAS!i No. M99513

11CLOSING MEMORANDUM oF POINT'S AND AuTHORITIE\S

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 been2 unable to end her career in a positive way. which has left her with a great deal of grief3 and disappointment. (Wright Decl., 1]1 0.)4 Under the circumstances and the competent evidence, there is no question that5 the disqualification of Stamp would cause extreme prejudice to Ms. Miller. The City's6 approach is to suggest that Ms. Miller can find another attorney. That is not a realistic7 scenario, as the declaration of Dr. Wright makes clear. This is not a fungible matter. It8 is not a commodity. It is a highly complex and highly personal case. It involves a raal9 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, incompetent11 and mischaracterized evidence, and a story that is not credible.12 The extreme prejudice also would include significant harm to Stamp who has13 spent more than 200 hours of his time and 240 hours of his associate attorney and staff14 time, in addition to thousands of dollars in litigation eKpenses. Those do not include the15 high cost of opposing this motion, and the many other matters that his Office has turned16 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 not19 define "extreme prejudice." and one case {Santa T l ; ~ r e s a Citizen Action Group v. City of20 San Jose (2003) 114 Cai.App.4th 689) uses the term substantial prejudice." also21 without defining it. As the cases cited even by the City make clear, the determination of22 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 of24 prejudice to Plaintiff and her attorney are extreme under the facts and circumstances of25 this case.26 And what would be gained from disqualification? Allowing Stamp to continue27 representing Jane Miller would not result in the use or disclosure of confidential28 information. Nor would It disadvantage the City. The only result that would come from

Mu_LER v Cn:y OF CARMEL.-eY-n


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1 a disqualification would be to stop the prosecution of potentially valid discrimination2 claims, and impose ex1reme harm to Plaintif f and to her efforts to secure justice in this3 most important matter.4 CONCLUSION5 For the reasons stated above and in the briefing on this motion, and in the6 interests of justice. the motion to disqualify should be denied.78910111213141516171819202122232425262728

Dated: December 4, 2009

M.ILI.ERv, CITY OF CARMEL-BY-THE..SEA

LAW OFFICES OF MICHAEL W. STAMP

0 ~Michael W. StampAttorneys for Plaintiff, Jane Kingsley M ~ l e r

13CLOSING M5MoAANOUM OF PoiNTS AND Al!THORmES

Documents

PLAINTIFF'S CLOSING MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY JANE KINGSLEY MILLER v. CITY OF CARMEL-BY-THE-SEA (M99513) 2009.pdf