Filed 4/30/15 Garau v. Dept. of Industrial Relations CA2/2 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION TWO 

OLGA H. GARAU, 

 Plaintiff and Appellant, 

 v. 

DEPARTMENT OF INDUSTRIAL 

RELATIONS et al., 

 Defendants and Respondents. 

 B257958 

 (Los Angeles County 

 Super. Ct. No. BC483476) 

 APPEAL from a judgment of the Superior Court of Los Angeles County. Rolf M. 

Treu, Judge. Affirmed. 

 Olga H. Garau, in pro. per., for Plaintiff and Appellant. 

 State of California Department of Industrial Relations, Office of the DirectorLegal Unit, Christopher G. Jagard, Christopher Frick, Jay J. Lee and Marilyn Bacon, for 

Defendants and Respondents. 

* * * * * * 
2 

 An employee of a division of a state department sues her division, the 

state department of which it is a part, and the state itself for employment-related claims. 

May attorneys from the department’s legal unit represent all three state entities in the 

action? We conclude that they may, and affirm the denial of the employee’s motion to 

disqualify defense counsel. 

FACTUAL AND PROCEDURAL HISTORY 

 Olga Garau (plaintiff) is an attorney, and an employee of the Division of 

Occupational Safety and Health (DOSH). Proceeding pro se, plaintiff sued DOSH, the 

Department of Industrial Relations (DIR), and the State of California for (1) violations of 

the Fair Housing and Employment Act (Gov. Code, § 12940 et seq.), (2) breach of a 

variety of statutory duties relating to her FEHA claim (Gov. Code, §§ 18710, 19869; Civ. 

Code, § 3522; Code Civ. Proc., §§ 128, 128.7), and (3) breach of contract. DOSH is a 

subdivision of the DIR (Lab. Code, § 56), and the DIR is part of the Labor and Welfare 

Agency, an agency of the state’s executive branch (id., § 50; Gov. Code, § 15500 et seq). 

 Attorneys from the Office of the Director of the DIR-Legal Unit (Legal Unit), on 

behalf of the DIR, demurred to plaintiff’s complaint and filed a special motion to strike 

plaintiff’s complaint. When no answer or other responsive pleading was filed for DOSH 

or the state, the trial court entered defaults against all three defendants. 

 After the trial court relieved all three defendants from the default on account of 

attorney error, plaintiff sought to disqualify the Legal Unit as counsel for the defendants 

and moved for an accompanying order striking all responsive pleadings and entering a 

default judgment in her favor on two grounds: (1) statutory law—namely, Government 

Code section 955.4

1

—requires the Attorney General to represent these state entities; and 

(2) the Legal Unit suffered from ethical conflicts of interest that preclude it from 

representing the defendants in this case. In opposing these motions, the Legal Unit 

 

1 All further statutory references are to the Government Code unless otherwise 

indicated. 
3 

produced a letter from the Attorney General authorizing the Legal Unit to represent all 

three defendants in this case. 

 The trial court denied plaintiff’s challenges to the Legal Unit’s representation 

under section 955.4 as well as what the court viewed as a challenge grounded in the 

“substantively identical” language in section 11042; the court accordingly denied her 

request for a default judgment. The trial court also denied defendants’ corrected special 

motion to strike, sustained defendants’ demurrer in part with leave to amend, and granted 

defendants’ motion to compel discovery. 

 Plaintiff petitioned this court for a writ of mandate seeking review of the trial 

court’s rulings, which we summarily denied. 

 Plaintiff timely appealed the denial of her disqualification motions. 

DISCUSSION 

I. Disqualification of Counsel

 Plaintiff argues that the trial court erred in rejecting her arguments that the Legal 

Unit was statutorily and ethically barred from representing the state defendants in this 

case. Disqualification rulings are typically reviewed for an abuse of discretion (Roush v. 

Seagate Technology, LLC (2007) 150 Cal.App.4th 210, 218 (Roush)), but interpretation 

of the statutes governing representation of state entities, like the interpretation of any 

statute, is reviewed de novo (Chatsky & Assocs. v. Superior Court (2004) 117 

Cal.App.4th 873, 876 (Chatsky & Assocs).) In either case, we review the trial court’s 

ruling, not its reasoning. (People v. Geier (2007) 41 Cal.4th 555, 582.) 

A. Statutory authority

 By statute, the Attorney General is generally designated as the person who will 

represent the state and most state agencies in court. With regard to the state, sections 

12511 and 12512 provide, in pertinent part, that “the Attorney General has charge, as 

attorney, of all legal matters in which the State is interested” (§ 12511) and 

“shall . . . prosecute or defend all causes to which the State, or any State officer is a party 

in his or her official capacity” (§ 12512). With regard to state agencies, section 11042 
4 

provides, in pertinent part and except as to the agencies named in section 11041, that 

“[n]o state agency . . . shall employ any legal counsel other than the Attorney General, or 

one of his assistants or deputies, in any matter in which the agency . . . is interested, or is 

a party as a result of office or official duties.” (§§ 11042, 11041, subds. (a) & (b) 

[excepting various agencies from representation by the Attorney General].) 

 However, this rule designating the Attorney General as counsel for the state and 

state agencies is a default rule (§ 11040, subd. (c)), and the Attorney General may let 

others represent the state and state agencies in her stead. Section 11040 expressly 

empowers the Attorney General to give “written consent” enabling a state agency to 

employ counsel other than the Attorney General (§ 11040, subds. (a) & (c)); People ex 

rel. Dept. of Fish & Game v. Attransco (1996) 50 Cal.App.4th 1926, 1932 (Attransco) 

[“section 11040 obviously functions as an exception to a general rule”]), and that 

provision applies with equal force when the state itself is a defendant (see People ex rel. 

Deukmejian v. Brown (1981) 29 Cal.3d 150, 154-155 (Brown) [citing section 11040 as an 

exception to sections 12511 and 12512].) This flexibility has been the rule since our 

state’s infancy. (See, e.g., People ex rel. Livingston v. Pacheco (1865) 29 Cal. 210, 213 

[“the Attorney General is the only person to whom authority is given by law to appear for 

the people in this Court, and he, or such person as he may delegate authority to, to 

appear in his name, must represent them in each stage of a proceeding in this Court”], 

italics added]; Perry v. Brown (2011) 52 Cal.4th 1116, 1153-1154 [rejecting argument 

that “the Attorney General is the only person or entity that may assert the state’s interest 

in the validity of state law in a proceeding in which the law’s validity is at issue”]; accord 

People v. Birch Sec. Co. (1948) 86 Cal.App.2d 703, 707 [“Any duties which the attorney 

general may perform personally may ordinarily be performed by his regularly authorized 

assistants.”].) 

 In this case, the Attorney General has provided written consent specifically 

authorizing the Legal Unit to represent DOSH, the DIR, and the state in this action. This 

suffices to permit the Legal Unit’s representation. (Accord, California Air Resources Bd. 
5 

v. Hart (1993) 21 Cal.App.4th 289, 298-299 [Attorney General’s written consent 

authorizes prosecution by another state entity].) 

 Plaintiff raises two arguments in response. First, she argues that section 955.4 

overrides the Attorney General’s power under section 11040 to delegate her ability to 

defend state entities to others. Section 955.4 provides that, except in situations not 

pertinent here, “the Attorney General shall defend in all actions on claims against the 

State.” (§ 955.4, subd. (b), italics added.) Notwithstanding this seemingly inflexible 

language, we reject plaintiff’s argument that section 955.4 disqualifies the Legal Unit. 

 To begin, and as the language in section 955.4 that we italicized above confirms, 

section 955.4 is part of the Government Claims Act (§ 810; see also § 810 et seq.). As 

such, at most it governs litigation under that Act. But this case, as plaintiff alleges in her 

complaint, does not fall under the Act. (See State Air Resources Bd. v. Superior Court

(1979) 93 Cal.App.3d 803, 811 [observing that section 955.4 “applies to tort claims”]; 

Snipes v. City of Bakersfield (1983) 145 Cal.App.3d 861, 865 [“actions against 

governmental entities brought under the FEHA are to be excepted from the general 

requirements of the Tort Claims Act”].) 

 More broadly, section 955.4’s placement in the Government Claims Act indicates 

that it is not intended to be a global renouncement of section 11040. Indeed, the 

Government Claims Act itself recognizes the Attorney General’s power to delegate 

representation to others. (§ 960.5.) Further, our task is to harmonize statutes where it is 

reasonable to do so, not to shoehorn them into a conflict. (Chatsky & Assocs., supra, 117 

Cal.App.4th at pp. 876-877; Attransco, supra, 50 Cal.App.4th at pp. 1932-1933.) Section 

955.4 can reasonably be viewed as yet another incarnation of the default rule designating 

the Attorney General as counsel, and thus subject to the same exception allowing 

delegation; section 960.5 strongly suggests as much. What is more, even if sections 

955.4 and 11040 did conflict, section 11040 would prevail because it more specifically 

and comprehensively addresses the subject of the Attorney General’s duties in 
6 

representing state agencies. (DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 546 

[specific trumps the general].) 

 Second, plaintiff argues that the Attorney General’s written consent in this case 

was invalid because not given “prior to employment of counsel for representation of any 

state agency or employee in any judicial proceeding.” (§ 11040, subd. (c).) Because the 

written consent in this case came before the litigation of any of the motions now before 

us on appeal, plaintiff appears to be arguing that the Attorney General’s consent is valid 

only if it occurs at the very beginning of a case (that is, before the state entity makes any 

appearance). But there is nothing in the text of section 11040 or the purpose behind it 

that requires the Attorney General to give her consent at the outset of a case or forever 

lose her ability to do so. The Attorney General’s consent in this case was timely given. 

 For these reasons, we conclude that the Legal Unit is statutorily authorized to 

represent DOSH, the DIR, and the state in this matter. 

B. Ethical conflicts of interest

 “[D]isqualification is a drastic course of action . . .” (Roush, supra, 150 

Cal.App.4th at p. 219.) The trial court did not abuse its discretion in concluding that this 

course of action was not warranted in this case. 

 As an initial matter, plaintiff lacks standing to disqualify the Legal Unit. A party 

has standing to seek disqualification of counsel only if she has an attorney-client 

relationship with that counsel or otherwise has “an expectation of confidentiality” arising 

out of “some sort of confidential or fiduciary relationship” with that counsel. (Great 

Lakes Constr., Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1356.) The Legal Unit has 

never represented plaintiff; nor is there a confidential or fiduciary relationship running 

between them. Indeed, the Legal Unit’s lawyers are part of the DIR, not DOSH where 

plaintiff worked; the trial court found that the Legal Unit’s attorneys had no personal 

knowledge of any incidents involved in this case, and plaintiff has given us no basis to 

gainsay that factual finding. Plaintiff cites Labor Code section 3762, subdivision (c), and 

several cases for support, but none is relevant to this issue. (Lab. Code, § 3762, subd. (c) 
7 

[addressing duties of insurers and third-party administrators to keep medical information 

protected by the Confidentiality of Medical Information Act confidential when handling 

workers’ compensation claims]; Sullivan v. Dunne (1926) 198 Cal. 183, 192 [addressing 

authority of attorney when client has become incompetent]; People ex rel. Webb v. Honey 

Lake Valley Irrigation Dist. (1926) 77 Cal.App. 367, 374 [addressing proper timing of 

disqualification motion, not its merit]; Flatt v. Superior Court (1994) 9 Cal.4th 275, 278-

279 [addressing attorney’s duties when withdrawing from representation of current client 

upon learning of conflict with a prior client].) 

 Even if we assume plaintiff has standing to seek disqualification of defendants’ 

counsel, the trial court did not abuse its discretion in rejecting her arguments as to why 

the Legal Unit could not represent the defendants. Plaintiff contended that the Legal Unit 

should be conflicted because its attorneys were percipient witnesses to events in this case, 

but, as noted above, the trial court found to the contrary and we have no basis to disturb 

that finding. Plaintiff asserted that the Attorney General has a conflict with the DIR and 

the state because she has been adverse to them in other proceedings, but these other 

proceedings have nothing to do with this case and accordingly provide no ground for 

disqualification. (Cf. Brown, supra, 29 Cal.3d at pp. 155-156 [Attorney General may not 

withdraw as counsel to state agencies and then sue them “the next day on a purported 

cause of action arising out of the identical controversy”].) Plaintiff finally contends that 

the Legal Unit’s attorneys are members of the same bargaining unit (and subject to the 

same Memorandum of Understanding) as she is, and that they are incompetent, but these 

contentions—even if true—create no disqualifying ethical conflict. 

 In sum, the trial court did not abuse its discretion in rejecting plaintiff’s ethical 

arguments for disqualification. 

II. Remaining Contentions

 In her opening brief, plaintiff attacks the trial court’s rulings granting defendants’ 

motion to compel discovery and denying her motion to strike defendants’ demurrer and 

other responsive pleadings as untimely. Defendants argue that these orders are 
8 

interlocutory and not subject to review by appeal at this time. We need not address 

defendants’ arguments because plaintiff’s attacks are outside the issues set forth in her 

notice of appeal and are consequently outside the scope of this appeal. (Unilogic, Inc. v. 

Burroughs Corp. (1992) 10 Cal.App.4th 612, 624-625 [“‘It is elementary that an appeal 

from a portion of a judgment brings up for review only that portion designated in the 

notice of appeal. [Citation.]’”], quoting Glassco v. El Sereno Country Club, Inc. (1932) 

217 Cal. 90, 91-92.) We will not consider them. 

DISPOSITION 

 The judgment is affirmed. Costs are awarded to defendants. 

 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. 

_______________________, J. 

 HOFFSTADT 

We concur: 

____________________________, P. J. 

 BOREN 

____________________________, J. 

 ASHMANN-GERST