Metropolitan News-Enterprise


Wednesday, December 17, 2014


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Litigant Waited Too Long to Raise Conflict Issue, C.A. Rules

Motion to Exclude Allegedly Tainted Evidence Was Made Years After City Attorney’s Office Was Disqualified




A San Francisco contractor, having succeeded in disqualifying the entire City Attorney’s Office from a lawsuit, should not have waited several years to move to exclude evidence that office gathered for the litigation, the First District Court of Appeal has ruled.

Div. Five ruled Monday that a motion in limine, brought days before trial by Cobra Solutions, Inc., was properly denied on timeliness grounds. The court did, however, grant Cobra a new trial on some of the city’s claims.

San Francisco sued Cobra—a technology vendor—more than a decade ago, alleging that it either intentionally or negligently billed the city for work that a subcontractor, Monarch Enterprises, was supposed to perform but didn’t. Monarch, the city alleged, was a sham company run by a city employee, Marcus Armstrong, who pled guilty to mail and wire fraud after it was discovered he had obtained hundreds of thousands of dollars through Cobra and two other contractors.

Motion to Disqualify

Cobra moved to disqualify the City Attorney’s Office on the ground that City Attorney Dennis Herrera—who was elected in 2001—had done work for the company while in private practice and had access to confidential information relevant to the litigation. San Francisco Superior Court Judge Donald Mitchell granted the motion in 2003, but the order was stayed on appeal until the state Supreme Court affirmed three years later.

The city then hired outside counsel to take over the litigation.

In its motion in limine, filed in 2012, Cobra alleged that the litigation was tainted by a conflict of interest because members of the City Attorney’s Office had worked on the case during the period between the order of disqualification and the affirmance by the Supreme Court. It moved that all evidence obtained by the City Attorney’s Office be excluded from the trial.

Opposition to Motion

The city opposed the motion both on the merits—arguing that city personnel had only slight involvement in matters related to Cobra during the period in question; that Herrera had personally walled himself off from any matters involving Cobra, even prior to the disqualification; and that Cobra had not been prejudiced—and on timeliness grounds.

Judge James McBride agreed that the motion was untimely, and denied it on that ground, while saying Cobra could seek sanctions later if it could show that the City Attorney’s Office violated the disqualification order. He later ruled that there was insufficient evidence of any such violation.

The case went to trial, resulting in a verdict of less than $25,000 in favor of the city, and rejection of claims raised by Cobra’s cross-complaint.

Justice Mark Simons, writing for the Court of Appeal, agreed that the motion was untimely.

Little Justification

The company’s only justification for the years-long delay, the justice noted, was a claim that it had been unaware that the city’s outside counsel was going to rely heavily on evidence gathered by the City Attorney’s Office during the time in question. But Cobra’s own evidence, Simons said, showed that it had been aware all along of the office’s involvement in matters related to the company, including a probe into payments to subcontractors.

“Accordingly, at the time of the Supreme Court’s decision in 2006, Cobra was well aware the City might use at trial evidence developed with the participation of the City Attorney’s Office,” the justice wrote, adding that the prejudice to the city would be “extreme” if the court were to rule that the evidence was improperly used.

In an unpublished portion of the opinion, Simons went on to say that the defendant was entitled to a new trial on the city’s claims for negligent and intentional misrepresentation and violation of the California False Claims Act. The jury’s findings for the plaintiffs on the misrepresentation claims but for Cobra on the CFAC cause of action could not be reconciled, Simons concluded.

The case is City and County of San Francisco v. Cobra Solutions, Inc., 14 S.O.S. 5702.


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