2012-00133602-CU-CR

DeeAnn Silva vs. Richard Watts

Nature of Proceeding: Motion for Sanctions

Filed By: Yap, Julie G.

Defendant HV Houston Development, Inc.’s Motion for Sanctions is ruled upon as
follows.

Plaintiffs are admonished for filing an opposition that exceeds the 15 page limit set
forth in C.R.C. 3.1113(d).) The Court considered the opposition although it had the
discretion not to do so. The Court did not consider Plaintiff’s “Reply to Defendant’s
Reply” filed August 30, 2013.

Plaintiffs Deeann Silva, Amanda Bryer, Elena Torres and Jan Olson are current or
former employees of 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 moves 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. Defendant contends that Plaintiffs’ counsel recently and improperly
accepted representation of Cleland in a separate lawsuit against Defendant arising out
of 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. Rule 2-100 prohibits attorneys from communicating “about the subject of the
representation with a party” that the attorney knows is represented by another lawyer
in the matter. For purposes of Rule 2-100, a “party” includes “an employee of an
association, corporation, or partnership, if the subject of the communication is any act
or omission of such person in connection with the matter which may be binding upon
or imputed to the organization for purposes of civil or criminal liability or whose
statement may constitute an admission on the part of the organization.” (Rule of Prof.
Cond. 2-100(B)(2).) Defendant contends that Cleland is a represented party under this
provision because his conduct may be binding or attributed to Defendant as his
employer for purposes of civil liability. Defendant argues that it may be liable for
Cleland’s conduct to the extent Cleland failed to report sexual harassment that he
observed or that was reported to him. Defendant further argues that as Plaintiffs have
alleged that it was “well known” that Defendant condoned sexual harassment,
Cleland’s failure to report harassment of which he was aware could impute further
liability to Defendant.

Defendants seek an order sanctioning Plaintiff’s counsel and requiring disclosure of
the improper communications with Cleland. Defendants cite United States v. Sierra
Pacific Indus. (“Sierra Pacific I”) (E.D.Cal. 2010) 759 F.Supp.2d 1206, in which counsel
for the defendant attended a field trip sponsored by the plaintiff U.S. Forest Service
and asked questions that were relevant to the pending litigation. The court held that
defendant’s counsel’s contact with Forest Service employees outside the presence of
their counsel violated the “no contact” rule of Rule of Professional Conduct 2-100. (Id.
at 1213.) The court ordered the defendant to identify all employees contacted, the
dates and circumstances of the contacts and content of the communications, and
barred the defendant from using information obtained from the contacts in the
litigation. (Id. at 1214.)

In opposition, Plaintiffs contend that the circumstances here are not analogous to
those in Sierra Pacific because the “represented” employees were not the clients of
the attorney whose conduct was at issue. Plaintiffs argue that the applicable case is
Neal v. Health Net, Inc. (2002) 100 Cal.App.4th 831. In that case, an employee filed an
action against her former employer and supervisor alleging that she had been
wrongfully discharged from her position as human resource manager due to race and
gender discrimination. (Id. at 834.) Subsequently, another employee of the defendant,
a legal secretary who allegedly had obtained confidential information from the first
employee’s litigation file, retained the same attorney who was representing the first
employee to represent her in her own discrimination action against the defendant
employer. (Id.) The defendant moved to disqualify the attorney in the first employee’s
action on the grounds that his contact with the second employee violated various
Rules of Professional Conduct, including Rule 2-100. The court determined that Rule 2
-100 did not provide grounds for disqualification: ”[W]e also disagree with defendants
that [attorney] Mr. Taylor must be disqualified for violating Rule 2-100 of the State Bar
Rules of Professional Conduct, which prohibits communications with parties
represented by counsel. Rule 2-100(C)(3) specifically provides that the rule does not
apply to ‘[c]ommunications otherwise authorized by law.’ There is no violation of rule 2-
100(C)(3) because communications of even confidential or privileged information with
one’s own attorney are authorized by law.” (Id. at 849-850.)

However, Neal is distinguishable in that the legal secretary that subsequently retained
the plaintiff’s attorney in her own action did not have any supervisory duties with
regard to the plaintiff, unlike Cleland in this case. The Court agrees with Defendants that the communications by Plaintiff’s counsel with Cleland violate Rule 2-100. Here,
the potential for Cleland’s participation as a witness in this case while simultaneously
pursuing his own action against Defendant gives rise to an unacceptable appearance
of impropriety.

Defendant’s motion for sanctions is granted. The Court orders 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 shall disclose all improper communications between Plaintiffs’ counsel
and Cleland.

The Court declines to order disqualification of Plaintiff’s counsel from representing
Plaintiffs at this time.

Defendants shall prepare a formal order for the Court’s signature pursuant to C.R.C.
3.1312 consistent with this ruling.