Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BS112698, David P. Yaffe, Judge.
Gutierrez, Preciado & House and Calvin House for Defendant and Appellant.
Shaw, Terhar & LaMontagne LLP, Michael J. Terhar and Eric A. Amador for Plaintiffs and Respondents.
MANELLA, J.
When claims were asserted against respondents as former employees of appellant County of Los Angeles (the County), they asked the County to provide a defense pursuant to Government Code section 995, a provision of the California Tort Claims Act (Gov. Code, § 810 et seq.). After the County denied the request, respondents sought relief by petition for writ of mandate. The trial court directed the County to offer to provide a defense through counsel that it had engaged to defend another employee. Concluding that a conflict would result from any attempt by the County to provide joint representation to respondents and the other employee, we reverse.
All further statutory citations are to the Government Code, unless otherwise specified.
RELEVANT PROCEDURAL HISTORY
In 2006, the County employed respondents Helen Jee-MacDougall, Vernon Jefferson, Derrick Bell, and Peter Fisher as probation officers in the Probation Department, whose director was Charles Rogers. On March 15, 2006, respondents were responsible for supervising youths held in the Los Padrinos Juvenile Hall, including D.M. At 4:00 p.m., an alleged sexual assault on D.M. was reported to the staff at the juvenile hall.
Following an investigation, Rogers concluded that the assault had occurred in a holding tank, and informed the County that it was the result of respondents’ negligence. In August 2006, after Skelly hearings, the County discharged respondents on the ground that their negligence and failure to follow Probation Department policies and procedures resulted in injury to D.M. Respondents requested civil service appeals, which were set for early 2007. In January 2007, two individuals charged with the assault pleaded no contest to forcible sodomy, and admitted to inflicting great bodily injury.
In Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 203, the Supreme Court held that except in minor disciplinary matters, public employees are entitled to notice and an evidentiary hearing on disciplinary actions taken against them.
On May 22, 2007, D.M. initiated an action against the County. On September 21, 2007, respondents also filed a complaint against the County, seeking damages resulting from their termination. Their first amended complaint named the County and Rogers as defendants, and asserted claims for denial of due process (42 U.S.C. § 1983), wrongful termination in violation of public policy, defamation, and infliction of emotional distress. The complaint alleged that the assault on D.M. had never occurred, that respondents had not been negligent in carrying out their duties, and that Rogers had pursued a “vendetta” in arranging for respondents’ termination.
On October 3, 2007, D.M. filed a first amended complaint in his action that named the County, Rogers, and respondents as defendants. The complaint alleged that the defendants “failed to follow screening, segregating, monitoring and supervision requirements” and other procedures applicable to minors when D.M. was placed in the holding tank. At some point, the County agreed to provide Rogers with a defense in D.M.’s action, and it engaged counsel to represent him.
On October 9, 2007, respondents asked the County to defend and indemnify them in D.M.’s action. The County initially agreed to provide respondents with a defense, subject to a reservation of rights. On November 20, 2007, before respondents had executed the reservation of rights agreements, the County’s Board of Supervisors denied their requests for a defense. The Board of Supervisors found that providing a defense “would create a conflict of interest between the County and each of [the respondents].”
On January 4, 2008, D.M. dismissed the County as a defendant in his action. That day, respondents also filed a petition for ordinary mandamus (Code Civ. Proc., § 1085), seeking a defense from the County in D.M.’s action. On July 10, 2008, the trial court granted the petition “in part,” concluding that the County was obliged to offer respondents a defense only by the counsel who was representing Rogers in D.M.’s action. The court expressly found that the County was not required to provide respondents with separate counsel. On August 13, 2008, the trial court entered a judgment directing the County to provide respondents a defense in D.M.’s action “upon express condition that [respondents] consent to being defended by counsel of the County’s choice, viz, the same law firm that is defending [Rogers], in that action.” This appeal followed.
DISCUSSION
The County contends that the trial court erred in directing it to offer respondents a defense in D.M.’s action through the counsel representing Rogers. We agree.
A. Governing Principles
Section 995 provides that “upon request of an employee or former employee, a public entity shall provide for the defense of any civil action or proceeding brought against him, in his official or individual capacity or both, on account of an act or omission in the scope of his employment as an employee of the public entity.” This duty is mandatory, unless one of the exceptions found in sections 995.2 and 995.4 is applicable. (Stewart v. City of Pismo Beach (1995) 35 Cal.App.4th 1600, 1605 (Stewart).)
Pertinent here is the exception in subdivision (a)(3) of section 995.2, which permits the public entity to decline to provide a defense when it determines that “[t]he defense of the action or proceeding by the public entity would create a specific conflict of interest between the public entity and the employee or former employee.” For purposes of this exception, “‘specific conflict of interest’ means a conflict of interest or an adverse or pecuniary interest, as specified by statute or by a rule or regulation of the public entity.” (Ibid.)
Ordinary mandate is properly used to review the Board of Supervisor’s decision to deny respondents’ request for a defense under section 995. (Stone v. Regents of University of California (1999) 77 Cal.App.4th 736, 745-746.) However, the scope of such a review is limited, “out of deference to the agency’s authority and presumed expertise.” (Id. at p. 745.) We examine the Board of Supervisor’s decision under the same standard as the trial court. (Ibid.) Our review is thus limited to an examination of the administrative proceedings to determine whether the agency’s actions have been arbitrary or capricious, entirely lacking in evidentiary support, inconsistent with required procedures, or devoid of proper notice. (Taylor Bus Service, Inc. v. San Diego Bd. of Education (1987) 195 Cal.App.3d 1331, 1340.)
A. Analysis
At the outset, we conclude that our inquiry in this appeal is properly limited to a single issue, namely, whether the Board of Supervisors improperly declined to offer respondents a defense through the counsel the County had engaged to represent Rogers in D.M.’s action. The trial court below stated: “The County has an obligation to represent the four guards, but not to provide them with separate counsel. It must however offer them [a] defense by the counsel that is already representing [Rogers]. If the four guards decline that representation and insist upon separate counsel, the County will have no duty imposed upon it by law to provide them with that separate counsel. But the [C]ounty cannot assume that they will refuse to be represented by counsel for [Rogers]. The County must make the offer and permit [respondents] to either accept it or reject it.”
In ordering the County to offer respondents the same counsel as was presently representing Rogers, the trial court relied on City of Huntington Beach v. Petersen Law Firm (2002) 95 Cal.App.4th 562 (City of Huntington Beach), in which the appellate court concluded that “no statute specifies that a public entity is liable for the cost of providing an entirely separate defense for an employee instead of a joint defense of the public entity and the employee” (id. at pp. 567-568).
On appeal, neither the County nor respondents challenge the trial court’s determination that the County has no obligation to provide respondents with a defense separate from Rogers’; indeed, respondents’ brief asserts that they have never demanded such a separate defense. Rather, the County contends that a specific conflict exists that obviates the County’s duty to provide respondents a defense under any circumstances. We therefore limit our inquiry to the sole issue necessary to resolve the County’s appeal, viz, whether the County’s provision of a defense to respondents in D.M.’s action through Rogers’ counsel would implicate a specific conflict of interest between the County and respondents, within the meaning of section 995.2, subdivision (a)(3).
We conclude that it would. No attorney may properly represent both Rogers and respondents in D.M.’s action, in view of their declared litigation positions: Rogers asserts that the assault on D.M. resulted from respondents’ dereliction of duty. Respondents claim no assault occurred. In some circumstances, attorneys may represent clients with actual adverse interests with the clients’ informed consent. (Rules Prof. Conduct, rule 3-310(C)(2).) However, notwithstanding such consent, an attorney must withdraw from dual representation “if that representation is in conjunction with a trial or hearing where there is an actual, present, existing conflict and the discharge of duty to one client conflicts with the duty to another.” (Klemm v. Superior Court (1977) 75 Cal.App.3d 893, 898.)
Here, the record establishes that in D.M.’s action Rogers takes the position that D.M. was assaulted, and that respondents negligently contravened policies and procedures intended to prevent such misconduct. This is also the crux of the County’s position in defending against respondents’ civil service proceedings and wrongful termination action against the County and Rogers. In that action, respondents denied the existence of an assault on D.M., disclaimed any negligent conduct on their part, and attributed their terminations to Rogers’ vendetta against them. As Rogers’ counsel could not effectively represent both Rogers and respondents in D.M.’s action if they took opposed positions on these key matters, their declared positions render dual representation unavailable in D.M.’s action. As our Supreme Court has explained, this situation constitutes “[t]he paradigmatic instance of... prohibited dual representation.” (Flatt v. Superior Court (1994) 9 Cal.4th 275, 284, fn. 3.) The County cannot be directed to provide dual representation under these circumstances. (Painting & Drywall Work Preservation Fund, Inc. v. Aubry (1988) 206 Cal.App.3d 682, 687 [“[M]andamus will not lie to compel the performance of any act which is contrary to statute or public policy”]; Swan v. Civil Service Commission (1971) 16 Cal.App.3d 710, 713 [same].)
Rogers also intends to assert that he recommended respondents’ termination for their dereliction of duty, and that neither he nor the County ratified their conduct.
In an apparent effort to remove this obstacle to dual representation, respondents suggest that they may align themselves with Rogers’ defense in D.M.’s action. We fail to see how they could do so. Respondents have already asserted in both their civil service proceedings and their wrongful termination action that no assault occurred, and that their terminations were the result of a vendetta by Rogers against them. There is simply no way to “align” this version of events with Rogers’ defense in D.M.’s action, which acknowledges the assault and attributes it to respondents’ negligence. Nor are we persuaded that any purported alignment by respondents with Rogers in D.M.’s action would, in fact, facilitate dual representation in that action. The record before us indicates that the counsel representing Rogers in D.M.’s action also represents him in respondents’ wrongful termination action against Rogers and the County. In such situations, disqualification of dual representation is ordinarily “‘automatic.’” (Flatt v. Superior Court, supra, 9 Cal.4th at p. 284.)
Even if respondents’ problematic suggestion could be implemented, dual representation in D.M.’s action would present a conflict of interest eliminating the County’s duty to provide a defense. Notwithstanding respondents’ alignment with Rogers’ defense in D.M.’s action, dual representation in that action would necessarily confer an advantage upon respondents in their own litigation against the County and Rogers. As clients of Rogers’ counsel in D.M.’s action, respondents would be owed a fiduciary duty of loyalty. (Flatt v. Superior Court, supra, 9 Cal.4th at p. 282; see American Mut. Liab. Ins. Co. v. Superior Court (1974) 38 Cal.App.3d 579, 592.) Although Rogers’ counsel would retain control over ordinary procedural issues in D.M.’s action, Rogers’ counsel would be obliged to consult with respondents on all matters that could impair respondents’ substantial rights, including the abandonment of key defenses and settlement of the action. (Blanton v. WomanCare, Inc. (1985) 38 Cal.3d 396, 404.) Rogers’ counsel -- as joint counsel for Rogers and respondents -- would thus be required to divulge to respondents the strengths and weakness of their common defense -- that is, Rogers’ defense -- at crucial junctures in D.M.’s action. This would inevitably confer an advantage upon respondents in their litigation against the County and Rogers.
In our view, the County is not obliged to fund this advantage to respondents in their litigation against the County. In Stewart, supra, 35 Cal.App.4th 1600, a police officer and the city that employed him were sued in federal court for civil rights violations. (Id. at pp. 1602-1603.) After the officer received a defense from the city, he began to cooperate with the plaintiffs, and the city withdrew its defense. (Id. at pp. 1603-1604.) The appellate court upheld the city’s decision, reasoning that the officer was “essentially asking the City to pay for a lawyer to help [the officer] (and the plaintiffs) dig the City’s grave in the federal action.” (Id. at p. 1606; see also City of Redondo Beach v. Delong (1981) 123 Cal.App.3d 1035, 1040 [public entity not required to pay for public official’s defense in actions initiated by public entity against public official].) Although the advantage to respondents against the County occurs in the wrongful termination action, rather than D.M.’s action, we reach the same conclusion here, as the two actions are closely connected. Accordingly, the County is not obliged to pay Rogers’ counsel to enable respondents to “dig the [County’s] grave in [respondents’] action.” (Stewart, supra, 35 Cal.App.4th at p. 1606.)
Pointing to City of Huntington Beach, in which the court held that any conflict obviating the public entity’s duty to provide a defense must be “actual,” rather than “potential,” respondents contend that the conflict presented by joint representation in D.M.’s action is merely potential. (City of Huntington Beach, supra, 95 Cal.App.4th at pp. 566-567.) We disagree. As noted, respondents have already asserted positions contrary to Rogers’, rendering joint representation impossible; moreover, were they to align themselves with Rogers’ position in D.M.’s action, joint representation in that action would necessarily confer an advantage upon respondents in their litigation against the County.
Respondents also contend that conflicts of interest extinguishing a public entity’s duty to provide a defense must arise within a single action. We disagree. Subdivision (a)(3) of section 995.2 encompasses conflicts of interest that involve “adverse or pecuniary interest[s],” and nothing in the statute requires that conflicts of interest arise within a single action. Respondents’ reliance on Laws v. County of San Diego (1990) 219 Cal.App.3d 189 (Laws), DeGrassi v. City of Glendora (9th Cir. 2000) 207 F.3d 636 (De Grassi), and Spindle v. Chubb/Pacific Indemnity Group (1979) 89 Cal.App.3d 706 (Spindle) is misplaced, as none of these decisions suggests that the pertinent conflict must occur within a single action. (Laws, supra, 219 Cal.App.3d at pp. 192-198 [under California Tort Claims Act, police officers not entitled to separate counsel in action in which they and their employer are sued when employer provides defense subject to reservation of rights]; (DeGrassi, supra, 207 F.3d at pp. 640-643 [under California Tort Claims Act, member of city council not entitled to defense free of city’s control]; Spindle, supra, 89 Cal.App.3d at pp. 714-715 [insurer-provided counsel did not breach fiduciary duties to joint clients by failing to disclose divergence in clients’ exposure to liability, as divergence did not constitute actual conflict of interest].) In sum, the trial court erred in directing the County to provide a defense to respondents in D.M.’s action through the counsel the County had engaged to represent Rogers in that action.
For the first time on appeal, respondents asserted in oral argument that there exists no conflict of interest “specified by statute or by a rule or regulation of the public entity,” within the meaning of subdivision (a)(3) of section 995.2. We disagree. The trial court’s order directing the County to provide joint representation in D.M.’s action requires conduct in contravention of rule 3-310(C)(2) of the Rules of Professional Conduct, which are authorized and rendered enforceable by statute (Bus. & Prof. Code, §§ 6076, 6077). Moreover, as the court explained in Stewart, even in the absence of a pertinent statute, rule, or regulation, the exception in section 995.2, subdivision (a)(3) is applicable when the conflict involves a requirement that “[the] public entity [] finance litigation directed against itself.” (Stewart, supra, 35 Cal.App.4th at p. 1606.) As noted above, obliging the County to fund joint representation in D.M.’s action amounts to asking the County to “dig [its own] grave” in respondents’ wrongful termination action. (Ibid.)
DISPOSITION
The judgment issuing the writ of mandate is reversed, and the trial court is directed to vacate the judgment and enter a new judgment denying the writ petition. Appellant is awarded its costs on appeal.
We concur: WILLHITE, Acting P. J., SUZUKAWA, J.