2012-00133602-CU-CR

DeeAnn Silva vs. Richard Watts

Nature of Proceeding: Motion to Disqualify Plaintiff’s Counsel

Filed By: Yap, Julie G.

Defendants’ Motion to Disqualify Plaintiffs’ Counsel and to Clarify Evidentiary
Sanctions is DENIED.

Plaintiffs Deeann Silva, Amanda Bryer, Elena Torres and Jan Olson are current or
former employees Defendant HV, an entity that owns, controls and/or operates the
Marriot Hotel located in Rancho Cordova. Plaintiffs allege that they were subjected to
sexual harassment and sexual battery in the course of their employment.

Defendant moved for sanctions and other relief arising out of alleged improper
communications between Plaintiffs’ counsel and Robert Cleland, a “banquet captain”
and current employee of Defendant HV Houston. Defendant asserts that the Plaintiffs
testified that Cleland was their supervisor and that they reported incidents of sexual
harassment to him. Plaintiffs’ counsel improperly accepted representation of Cleland in a separate lawsuit
against Defendant arising out Cleland’s employment. Defendant argues that Cleland’s
attorney-client relationship with Plaintiff’s counsel violates the “no-contact” rule set
forth in Rule of Professional Conduct 2-100.

Defense counsel previously made a motion for sanctions against counsel for the
plaintiff. After briefing and oral argument [October 3, 2013], on October 25, 2013, the
Court found that plaintiff’s counsel’s communications with and representation of Robert
Cleland violated California Rule of Professional Conduct 2-100. The Court granted
defendants’ motion and ordered the following:

(1) All evidence obtained as a result of the improper communications with Robert
Cleland is excluded;
(2) Plaintiffs’ counsel is barred from any further communications with Cleland regarding
alleged sexual harassment or sexual batteries at Defendant’s hotel;
(3) Plaintiffs’ counsel shall disassociate from, representation of Robert Cleland.

At that time the Court declined to order disqualification of Plaintiffs’ counsel from
representing Plaintiffs.

Defense counsel now moves again for disqualification of plaintiff’s counsel based upon
the contention that plaintiffs’ counsel has obtained an unfair advantage in this action
and that there exists a continuing injury to defendants from the representation of
plaintiffs by attorney Wright in this action.

However, other than speculation, counsel for defendants have no new facts to support
disqualification.

Counsel for plaintiffs describe the three interviews (April 5, 2013, Oct. 15, 2013 and
Nov. 7, 2013) they held with Cleland, all of which occurred after he had been
interviewed by defense counsel in March 2013.

Plaintiff’s counsel declares that defendants’ notes of their interviews with Cleland
reflect that he never investigated nor was he a part of any investigation into the sexual
harassment complaints of the plaintiffs in this action. Those notes were produced to
plaintiffs’ counsel before Cleland asked counsel to represent him.

Plaintiff’s counsel declares that Cleland’s communications with counsel for the plaintiffs
related to his allegations of harassment and discrimination based upon his sexual
orientation.

In compliance with the October 25, 2013 order Plaintiffs’ counsel’s final
communications with Cleland was limited to the termination of their engagement, and
was not regarding alleged sexual harassment or sexual batteries at Defendant’s hotel.

In compliance with the October 25, 2013 order to disassociate from representation of
Robert Cleland, Plaintiffs’ counsel offered to substitute out of the separate action they
filed on behalf of Cleland. Instead, at Cleland’s request that action has been
dismissed.

The order of October 25, 2013 does not require anything further from plaintiffs’ counsel
to effectuate the order that “All evidence obtained as a result of the improper
communications with Robert Cleland is excluded.”

The Court does not find a sufficient basis to disqualify counsel for the plaintiffs on the
record before it.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.