Motion to Recuse and Disqualify a Civil Case by DA?

In 2015, the Orange County District Attorney’s Office (“OCDA”) and the Riverside County District Attorney’s Office (“RCDA”) investigated AWI Builders, Inc. (“AWI”), Construction Contractors Corporation, Zhirayr Robert Mikikyan, Anna Mekikyan and Tigran Oganesian (collectively, “the AWI Defendants”) in connection with AWI’s involvement in certain public works projects including AWI’s work on the Orange County Fair project. 

It was suspected that the AWI Defendants violated certain labor and employment laws involving dozens of workers after being awarded a $10.3 million public works contract to construct a new lobby and entrance to the Pacific Amphitheater at the Orange County Fairgrounds.  Specifically, the workers alleged that they were not paid approximately $200,000 that was owed and the state alleged that AWI thereby avoided paying state payroll taxes.  It was also alleged that AWI threatened certain employees with deportation if they reported the unlawful practices to authorities.

In October 2015, pursuant to search warrants jointly obtained by the OCDA and RCDA, a large amount of AWI’s property was taken into the OCDA’s custody.  This included documents, computers, drives, servers, phones, tablets and thumb drives.

AWI’s counsel promptly informed the OCDA that the property seized included documents protected by the attorney-client and / or the attorney work product doctrine.  AWI also asserted that it needed many documents returned to defend against then-pending administrative actions brought against it by the Department of Labor Standards Enforcement (DLSE).

AWI’s counsel also demanded a return of the documents or at least a copy so it could prepare a privilege log to bar the OCDA from reviewing certain documents.  The OCDA refused this request, but appointed a third party attorney to review the documents and prepare such a log, which that attorney did.

In 2017, however, the OCDA decided not to pursue criminal charges against the AWI defendants and reassigned the matter to Orange County Deputy District Attorney Kelly Ernby for civil prosecution for violation of unfair competition laws (California Business & Professions Code § 17200, et seq.).  Since the AWI Defendants had accused the OCDA of prosecutorial misconduct in relation to the criminal investigation, Ernby was “walled off” from speaking to the rest of the OCDA about the substance of her investigation or the alleged wrongdoing.

The OCDA also provided the AWI Defendants with a copy of the OCDA’s full investigative file (except privileged documents) and returned documents seized during the criminal investigation.

In 2020, the AWI Defendants filed a motion under Penal Code § 1424(a) seeking an order recusing and disqualifying Ernby, another OCDA by name and the entire OCDA’s office, claiming that the OCDA’s office engaged in misconduct by improperly handling property seized in the criminal investigation that was protected by the attorney-client privilege and work product doctrine and that they therefore had a conflict of interest in prosecuting the civil case.

After requesting supplemental briefing and evidence on the issue of the OCDA’s handling of privileged material received through search warrants, the trial court judge, Craig L. Griffin, denied the motion.

The AWI Defendants then appealed the ruling to the Fourth Appellate District, which affirmed the trial court ruling. 

To some, this may reek of “typical Orange County judicial conduct,” enabling the OCDA in almost anything they do, however wrong.  However, the ruling does seem legally sound.

The Fourth Appellate District started its evaluation by addressing the OCDA’s claim that Penal  Code § 1424(a) was an improper authority for challenging the OCDA’s civil action, as it was not a criminal matter.  The Fourth District disagreed, finding that 1424(a) was proper to address any “authorized duty” of the district attorney and its civil action to enforce consumer protection laws was an authorized duty, so 1424(a) applied. 

Turning to the merits of the motion, the Fourth Appellate District affirmed the trial court judge because a 1424(a) motion to recuse a district attorney “may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial.” See People v. Vasquez (2006) 39 Cal. 4th 47, 59 (a district attorney cannot be recused unless there is a conflict that creates “an actual likelihood of leading to unfair treatment”). 

Moreover, “recusal of an entire district attorney’s office is an extreme step.  The threshold for recusing an entire office is higher than that for an individual prosecutor.” [citation]  An entire prosecutor’s office should not be recused unless it is necessary to assure a fair trial.  The showing of a conflict necessary to justify so drastic a remedy must be “especially persuasive.”  Spaccia v. Superior Court (2012) 209 Cal. App. 4th 93, 106-107.

“However, the mere existence of a conflict, by itself, is not sufficient to require recusal by the district attorney. . . Instead, it is defendant’s burden to allege facts which, if credited, establish (1) a ‘conflict of interest,’ and (2) that the conflict is ‘so grave as to make a “fair trial” unlikely.” Packer v. Superior Court (2014) 60 Cal. 4th 695, 709-710.

Here, the trial court had found that the OCDA had not violated its duty in how to handle privileged documents (see State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal. App. 4th 644), so the AWI Defendants did not even establish facts that there was any conflict of interest.

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