Tuesday, November 15, 2011
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Judge Denies Discovery on Motion to Recuse City Attorney’s Office
By SHERRI M. OKAMOTO, Staff Writer
Los Angeles Superior Court Judge Georgina Torres Rizk yesterday denied a discovery request filed by an outdoor advertising installation company seeking evidence to support a motion to disqualify the Los Angeles City Attorney’s office from prosecuting it, and several other billboard companies, on misdemeanor charges.
Anthony V. Salerno, one of the attorneys representing MD Graphic Installers Inc. and its primary, admitted after the hearing that Rizk’s ruling was a potentially fatal blow to the defense.
“She was basically telegraphing the way the rest of the decision is going to go,” Salerno said, implying that Rizk will also deny the motion to disqualify the city attorney’s office.
Federal Suit
The motion, filed last month by Salerno and his associate, Stephen T. Morgan, contends that the city attorney’s office filed civil and criminal actions against their clients after various landowners whose buildings had displayed graphics installed by their clients sued the city in federal district court, asserting that they had a constitutional right to display advertising on their property.
Salerno and Morgan said the city attorney was using the civil and criminal actions to gain leverage in the federal case, and conditioning a favorable resolution of the criminal case on the payment of a substantial settlement of the civil case.
Morgan, in arguing the discovery motion before Rizk yesterday, analogized the city’s actions to a “robber holding a gun to your head.” He insisted that his client, and the other defendants in the criminal action, cannot receive a fair trial if the criminal matter is prosecuted by the city attorney’s office.
The fact that the civil and criminal matters are proceeding concurrently, Morgan contended, creates a “symbiotic relationship” between them, and gives rise to a situation “ripe for abuse.”
He argued that the office was ethically obligated to create a “firewall” separating all aspects of the criminal prosecutions from the city’s civil nuisance abatement actions, which Deputy City Attorney Richard Kraft vigorously disputed.
Kraft said the office treats civil nuisance abatement actions as “quasi-criminal,” and these fall within the ambit of the criminal branch, which handles matters where the office is representing the people of California.
Improper Situation
When questioned by Rizk, he said the only situation in which the alleged leveraging would be improper would be “if a case was brought for no good cause” except to exert pressure on a litigant in a separate matter.
Morgan countered that the criminal charges against the defendants were “essentially shams,” and that Deputy District Attorney David Berger—a one-time special assistant to City Attorney Carmen Trutanich who has become an outspoken critic of his former boss—was prepared to testify as to this.
Chief Deputy William Carter, who was present in the audience, then rose and asked to be heard. He told Rizk that Berger may have breached the attorney-client privilege held by the city, as the client of the city attorney, in divulging information learned during Berger’s tenure with the office, to the defense attorneys.
Rizk noted the objection, and asked Morgan to proceed without further discussing what Berger may testify to.
She called a brief recess before issuing her ruling from the bench. Rizk explained that she “had to decide if the defendants made a credible showing on the allegations of conflict of interest” in order to decide on the discovery motion, and that she had found “no credible evidence the city attorney conditioned dismissal of [the criminal] case on the federal case,” or that “the city attorney or any deputy has a personal or pecuniary interest in the civil or criminal case.”
The judge reasoned that the city attorney’s office was “authorized to bring both” the civil and criminal actions, and “authorized to settle them”
After the hearing, Carter said Rizk’s conclusion “was our office’s position in our opposition [to the discovery motion.]”
He said the defense’s motion “was factually and legally flawed and misleading,” and dismissed it as “a desperate attempt to delay the prosecution” of the defendants for “serious violations of the law.”
“Our office is prepared to try those cases…and we want our day in court,” Carter said.
Kraft said he felt Rizk “made the appropriate ruling,” and suggested “the descriptions ‘no evidence’ and ‘no credible evidence’ ” used by Rizk put the defense’s “meritless” claims “in perspective.”
Salerno said he “knew all along” that however Rizk ruled, her decision would be challenged on appeal.
He suggested that “the big question” raised by this case is “can a prosecutor that has the power to file both a criminal and a civil suit… can they do both at the same time?”
Rizk “seems to think it is okay,” Salerno said, and he noted the city attorney “never argued they didn’t do that.”
The attorney added that he “gives [Rizk] a lot of credit for confronting the issue directly,” although he was convinced “it can’t be okay.”
“It’s a sad day for justice if prosecutors are allowed to do it,” Salerno remarked.
The next pre-trial hearing is set for Dec. 28.
Copyright 2011, Metropolitan News Company