Tuesday, December 30, 2014

Laches Applied to Evidentiary Exclusion Arising from 2003 Disqualification Order

City & County of San Francisco v. Cobra Solutions, No. A136679 (D1d5 Dec. 15, 2014)

In an earlier appeal—decided eight years ago!—the California Supreme Court held that the San Francisco City Attorney’s office was disqualified from representing the city and county in this case because City Attorney Dennis Herrera represented the defendant while in private practice. On remand, Cobra moved in limine to preclude the city from using any evidence obtained by the City Attorney’s Office during the three-year window between when it was DQed by the trial court and when the order was affirmed on appeal. The trial court denied the motion as untimely. The city proceeded to win a $24,000 verdict on its claims and a defense victory on Cobra’s cross-claims. Cobra appealed.

After noting an absence of California authority on the issue, and canvassing the law of other states, the court of appeal holds that “motions seeking to restrict the use of evidence, work product, or pleadings developed by disqualified counsel must be timely filed.” Here, Cobra could have sought restrictions back in 2006, right after the Supreme Court affirmed the disqualification. Based on the record evidence, Cobra knew that the City Attorney continued to participate in the case, albeit somewhat peripherally, from 2003 to 2006. Cobra’s delay raising the issue until the eve of trial six years later was unreasonable and to the prejudice of the city, which would have been deprived of alternative avenues of obtaining virtually all the evidence it needed to prove its case.


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