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Court of Appeal:
D.A.’s Office Not Subject to Recusal Based on Prior Probe
By a MetNews Staff Writer
The entire Orange County District Attorney’s Office cannot be barred from civilly prosecuting an action against two companies and three individuals in connection with performance under a $10.3 million public works contract, Court of Appeal has held, rejecting the contention that alleged misconduct on the part of that office in pursuing an earlier criminal investigation into the allegations requires a recusal.
Justice Eileen C. Moore the Fourth District’s Div. Three wrote the opinion, filed Wednesday. It affirms an order by Orange Superior Court Judge Craig L. Griffin.
Penal Code §1424(a) applies, Moore said, and under that section, a motion to disqualify a district attorney’s office “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.” That standard, she declared was not met.
Defendants in the current action under the Unfair Competition Law (“UCL”), contained in Business & Professions Code §17200 et seq., are AWi Builders, Inc. and Construction Contractors Corporation, owners Zhirayr Robert Mekikyan and Anna Mekikyan, and a controlling officer, Tigran Oganesian. Moore referred to them, collectively, as the “AWI defendants.”
Repeated Violations Alleged
They had been investigated for possible criminal prosecution for allegedly fraudulent acts in connection with the construction of a new lobby and entrance to the Orange County Fairgrounds’s Pacific Amphitheater. It was decided in May 2017 not to file criminal charges, but on Feb. 20, 2018, an action was instituted under the UCL alleging that the defendants “committed over two thousand separate violations of law, fraudulent acts and unfair business practices” relating to the project.
In particular, it is asserted that the defendants failed to pay workers nearly $200,000 in wages and overtime and evaded payroll taxes. Civil penalties are sought of up to $2,500 per each violation that is proven.
The defendants, in seeking recusal in 2020, argued that the District Attorney’s Office, in conducting its criminal investigation, in tandem with its Riverside County counterpart, had seized computers and documents, gaining access to “over ten thousand attorney-client communications between AWi defendants and their lawyers.”
Trial Court’s View
Griffin, in denying the motion, remarked that he was “unconvinced that this is the case,” pointing out:
“Indeed, all of the materials seized pursuant to the warrants were returned to Defendants by summer of 2018…Defendants produced a privilege log listing only 27 entries claiming attorney-client privilege, all of which appear to be emails between Defendants and their counsel.
“To the extent that additional documents somehow exist on the computers and other documents seized by the OCDA and/or Riverside DA, Plaintiff has produced declarations from numerous individuals supporting that there was no review of any privileged documents by attorneys actually working on this matter on behalf of Plaintiff.”
The judge said the “entire universe of 300,000 plus documents” reviewed by the District Attorney’s Office in connection with the UCL case was provided to the defendants and that they “have failed to identify a single one of these bates-stamped documents that falls within the privilege.”
Moore’s Opinion
In her opinion affirming the denial of the disqualification motion, Moore considered matters not addressed by Griffin. She wrote:
“We publish this opinion for two reasons. First, we hold that a motion seeking to disqualify a district attorney from pursuing civil claims against a party under the UCL must be decided under section 1424(a). In 1985, the Legislature amended and broadened the scope of section 1424(a)…from applying only to motions to disqualify a district attorney from prosecuting a criminal case to motions to disqualify a district attorney from ‘performing an authorized duty.’ ”
Moore noted that Business & Professions Code §17206(a) authorizes a district attorney to commence an action under the UCL, reasoning:
“Because the prosecution of civil claims under the UCL qualifies as an authorized duty of the district attorney within the meaning of section 1424(a), a motion to recuse a district attorney in such a case must be resolved under that code section.”
No Reasonable Possibility
She concluded that the District Attorney’s Office’s handling of privileged material did not evidence “a reasonable possibility it would not exercise its discretionary function in an evenhanded manner in the civil action,” or give rise to “a conflict that would render it unlikely the AWI defendants would receive a fair trial in this case.”
The second reason for ordering publication, Moore set forth, was to render precedential the holding “that an order denying a motion to recuse under section 1424(a) is an appealable order because it constitutes an order refusing to grant an injunction.” Such orders are appealable under Code of Civil Procedure §904.1(a)(6).
The case is People v. AWi Builders, Inc., 2022 S.O.S. 2661.
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