Jeffrey Gross v. Orange County Employees Retirement Systems et al

Filing 9

STIPULATION AND ORDER RE: SCREENING OF ATTORNEYS, REMAND TO STATE COURT AND LEAVE TO AMEND by Judge James V. Selna. Remanding case to Orange County Superior Court, Case number 30-2017-00944959-CU-WT-CJC. Plaintiff shall file his Amended Complaint in the Superior Court not later than January 31, 2018. Defendants shall respond to the Amended Complaint consistent with the California Rules of Court and the Code of Civil Procedure. Case Terminated. Made JS-6 (twdb)

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Gina M. Ratto (SBN 131217)
General Counsel
Lee K. Fink (SBN 216293)
Joseph W. Fletcher (SBN 96813)
ORANGE COUNTY EMPLOYEES
RETIREMENT SYSTEM
2223 East Wellington Avenue, Suite 100
Santa Ana, CA 92701
Telephone: [phone]
Facsimile: [phone]
E-Mail:
[e-mail]

JS-6

Attorneys for Defendants Orange County
Employees Retirement System, Steve
Delaney, Cynthia Hockless, Suzanne
Jenike, and Megan Cortez

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JEFFREY GROSS,

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Case No.: 8:17−cv−02020−JVS−DFM

Plaintiff,

STIPULATION AND ORDER RE:
SCREENING OF ATTORNEYS,
REMAND TO STATE COURT AND
LEAVE TO AMEND

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vs.

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ORANGE COUNTY EMPLOYEES
RETIREMENT SYSTEM (OCERS), a 28 U.S.C. § 1441(a)
public agency; COUNTY OF
(FEDERAL QUESTION AND
ORANGE, a governmental entity;
SUPPLEMENTAL JURISDICTION)
STEVE DELANEY, an individual;
CYNTHIA HOCKLESS, an individual;
SUSAN JENIKE, an individual;
MEGAN CORTEZ, an individual; and
Does 1 through 20 inclusive,

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Defendant.

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This Stipulation and Agreement (“Stipulation”) is entered into between and

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amongst the parties in the matter of Jeffrey Gross v. Orange County Employees

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Retirement System (“OCERS”), et al., in the United States District Court for the

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Central District of California, Case No. 8:17-cv-02020−JVS (DFMx), removed

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from the Orange County Superior Court (“Superior Court”), Case No. 30-2017-

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00944959-CU-WT-CJC (collectively, this “Matter”).
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STIPULATION AND [PROPOSED] ORDER RE: SCREENING, REMAND, AND LEAVE TO AMEND

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RECITALS
1.

Plaintiff Jeffrey Gross (“Plaintiff”) filed the Complaint in this Matter

in the Superior Court on September 20, 2107.
2.

Defendant OCERS, and Defendants Steve Delaney, Suzanne Jenike,

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Cynthia Hockless, and Megan Cortez (collectively, the “Individual Defendants”),

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filed a Notice of Removal to the United States District Court for the Central

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District of California on November 17, 2017. Defendant County of Orange filed

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a Joinder in the Notice of Removal on November 20, 2017.

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3.

A dispute has arisen between Plaintiff and OCERS with respect to

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whether OCERS’ in-house attorneys have a potential conflict of interest in the

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Matter; and Plaintiff has contemplated filing a motion to disqualify counsel for

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Defendants. Plaintiff has also contemplated filing a motion to remand this matter

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to the state court, and OCERS and the Individual Defendants have contemplated

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filing a motion for Judgment on the Pleadings pursuant to Federal Rule of Civil

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Procedure 12(c).

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4.

On November 28, the parties held an extensive conference of the

parties under Local Civil Rule 7-3 to discuss these three contemplated motions;
5.

The parties wish to resolve these disputes by entering into this

Stipulation as set forth below.

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NOW, THEREFORE THE PARTIES STIPULATE AS FOLLOWS:
1.

Plaintiff will not seek to disqualify the in-house attorneys in the

Legal Department of OCERS in this Matter;
2.

Plaintiff waives any and all actual or potential conflicts of interest

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with respect to the in-house attorneys in the Legal Department of OCERS based

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on the facts alleged in or related to this Matter;

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3.

Plaintiff agrees not to bring any claims against OCERS attorney

Dawn Matsuo (Matsuo) that relate to the allegations in this Matter;
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STIPULATION AND [PROPOSED] ORDER RE: SCREENING, REMAND, AND LEAVE TO AMEND

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4.

OCERS agrees that it will “screen” Matsuo from any involvement in

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the legal representation of OCERS in this Matter. Subject to the provisions of

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Paragraph 5, below, this screening shall include the following:
a. Matsuo will not appear in her capacity as an OCERS attorney on

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behalf of OCERS in this Matter before any court, in any deposition,

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at any settlement conference, or any other similar proceeding or

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occasion;

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b. Matsuo will not perform any legal or factual research related to this

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Matter, nor prepare any document (including pleadings, motions, or
correspondence) in this Matter;

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c. No member of the OCERS Legal Department, and no attorney on

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behalf of OCERS, shall, directly or indirectly, discuss the legal

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strategy, legal theories, legal claims, or legal issues of this Matter

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with Matsuo;
d. Matsuo will not provide legal advice to OCERS related to this

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Matter, including to the other members of the OCERS Legal

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Department, to the management of OCERS, or the OCERS Board of

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Retirement, and Matsuo shall not be included in any closed session

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of the OCERS Board of Retirement (or any committee thereof) for

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the purposes of offering legal counsel in this Matter pursuant to the

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Brown Act, Cal. Gov’t Code § 54956.9.

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5.

The parties contemplate that Matsuo may be a percipient witness in

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this Matter. Consistent with OCERS’ policies and practices, as an employee of

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OCERS, Matsuo may be required to cooperate with OCERS’ investigation of the

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facts of this Matter and to produce material for discovery. Additionally, Matsuo

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may be called to testify at a deposition, trial, or other hearing in this Matter.

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Notwithstanding the screening procedures set forth in paragraph 4, attorneys in

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the OCERS Legal Department may interview Matsuo to obtain the facts of this
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STIPULATION AND [PROPOSED] ORDER RE: SCREENING, REMAND, AND LEAVE TO AMEND

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Matter, require that she provide records responsive to discovery requests in this

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Matter, and otherwise provide information to attorneys in the OCERS Legal

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Department in the fashion that any employee of OCERS would be required to do

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in the normal course of business. Additionally, if Matsuo is called to testify in

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this Matter, OCERS may offer to represent her for the purposes of the litigation,

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either through in-house counsel or the OCERS Legal Department.
6.

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Matsuo will have the right to retain separate counsel in this Matter,

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including in any interview with OCERS attorneys and during any deposition or

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other testimony that she may give.
7.

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OCERS agrees that it will not take any adverse employment action

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with respect to Matsuo as a result of any interview, testimony, or information that

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she provides related to this Matter.
8.

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OCERS shall notify Matsuo of this Stipulation and her rights under it.

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Matsuo shall have no obligations arising under this Stipulation but shall be an

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intended third party beneficiary of this Stipulation.
9.

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Nothing in this Stipulation affects the attorney-client relationship

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and privilege that exists between OCERS and its attorneys, or between Matsuo

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and the OCERS attorneys if she chooses to accept any offer for OCERS to

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represent her.
10.

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Pursuant to Federal Rule of Civil Procedure 41(a)(2), Plaintiff agrees

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to dismiss WITH PREJUDICE the Fourth Cause Of Action (Violation of First

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Amendment Rights of Protected Free Speech—Retaliation), the Fifth Cause of

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Action (Violation of Fifth Amendment Rights), and the Individual Defendants

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from any claim that relates to the allegations in this Matter;
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The parties agree that the Matter shall be remanded to the Superior

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Plaintiff shall have leave to amend the Complaint, following remand

Court.
to the Superior Court.
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STIPULATION AND [PROPOSED] ORDER RE: SCREENING, REMAND, AND LEAVE TO AMEND

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13.

Plaintiff shall file his Amended Complaint in the Superior Court not

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later than January 31, 2018. Defendants shall respond to the Amended Complaint

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consistent with the California Rules of Court and the Code of Civil Procedure.

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Dated: December 12, 2017

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/s/
Joel Baruch
Attorney for Plaintiff Jeffrey Gross

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Dated: December 12, 2017

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/s/
Lee K. Fink
Attorney for Defendants Orange County
Employees Retirement System (OCERS);
Steve Delaney; Suzanne Jenike; Cynthia
Hockless; Megan Cortez

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Dated: December 12, 2017
/s/
Scott Martin
Attorney for Defendant County of Orange

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IT IS SO ORDERED.

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Dated: December 12, 2017

__________________________________
James V. Selna
United States District Judge

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STIPULATION AND [PROPOSED] ORDER RE: SCREENING, REMAND, AND LEAVE TO AMEND

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Attestation for Electronic Filing

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All other signatories listed, and on whose behalf the filing is submitted, concur in

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the filing’s content and have authorized the filing.

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Dated: December 12, 2017
/s/
Lee K. Fink
Attorney for Defendants Orange County
Employees Retirement System (OCERS);
Steve Delaney; Suzanne Jenike; Cynthia
Hockless; Megan Cortez

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STIPULATION AND [PROPOSED] ORDER RE: SCREENING, REMAND, AND LEAVE TO AMEND