Judge: Curtis A. Kin, Case: 20STCV26305, Date: 2022-08-11 Tentative Ruling

Case Number: 20STCV26305    Hearing Date: August 11, 2022    Dept: 72

MOTION TO QUASH SUBPOENA

Date:               8/11/21 (9:30 AM)

Case:               Matthew Garza v. City of Los Angeles (20STCV26305)

TENTATIVE RULING:

Defendant City of Los Angeles’ Motion to Quash Subpoena is GRANTED.

Defendant City of Los Angeles moves to quash the subpoena issued to Ellis & Makus, LLC by plaintiff Matthew Garza. (Lyon Decl. ¶ 14 & Att. 3 to Ex. 1.) Defendant maintains that, when it learned of plaintiff’s harassment claims in June 2020, it hired attorney Leslie Ellis of Ellis & Makus, LLP to conduct an investigation and provide a report to defendant. (Mtn. at 1:6-8.)

As a preliminary matter, even though defendant sent a meet and confer letter on the day before the date of production specified in the subpoena (Lyon Decl. ¶ 14 & Ex. 2), CCP § 1987.1 does not require the moving party to meet and confer prior to the filing of the motion. Even though CCP § 1985.3(g) requires that notice of a motion to quash shall be provided at least five days prior to production, the Court has authority to consider the motion even when filed after the date of production. (In re R.R. (2010) 187 Cal.App.4th 1264, 1278.)  Even though defendant was required to file a separate statement under Rule of Court 3.1345(a)(5), the Court exercises its discretion to rule on the merits because the reasoning for quashing the subpoena is set forth in the motion. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 892.)

The attorney-client privilege protects documents covering investigation conducted by outside counsel, even if the role of outside counsel does not extend to providing legal advice. (City of Petaluma v. Superior Court (2016) 248 Cal.App.4th 1023, 1033-34 [“[W]e agree with the City that it had an attorney-client relationship with outside counsel even though counsel's role was limited to a factual investigation and did not extend to providing legal advice as to which course of action to take based upon the results of the investigation”].) This is because in the case of a factual investigation, outside counsel “was expected to use her legal expertise to identify the pertinent facts, synthesize the evidence, and come to a conclusion as to what actually happened.” (Id. at 1035.) Accordingly, communications between Ellis and defendant are protected by the attorney-client privilege.

Further, any notes from Ellis reflecting her impressions are protected by the attorney work product doctrine. (CCP § 2018.030(a).)

Here, on the face of the request in the subpoena, plaintiff seeks investigative documents protected by the attorney-client privilege and attorney work product doctrine. Plaintiff seeks all documents “related to the firm’s investigation for the City of Los Angeles regarding Los Angeles Police Department Officer Matthew Garza's allegations of sexual harassment against Rick Jacobs and/or the City of Los Angeles.” (Lyon Decl. ¶ 14 & Att. 3 to Ex. 1.) Defendant hired Ellis for the purpose of securing legal service and/or advice in Ellis’ professional capacity. (Evid. Code § 951 [“client” for purposes of attorney-client privilege is “a person who, directly or through an authorized representative, consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity”].)

Plaintiff contends that defendant waived the attorney-client privilege by asserting a defense based on the avoidable consequences doctrine. (Wells Decl. ¶¶ 12-14 & Ex. 5.) However, the investigation commenced and the report was created after plaintiff’s employment with the Mayor’s Detail ended and after plaintiff filed the instant lawsuit. Plaintiff alleges the harassment took place from 2014 to October 2019 while he was working for the Mayor’s Detail. (FAC ¶¶ 11, 15.) Plaintiff left the Mayor’s Detail on June 18, 2020. (FAC ¶ 38.) Ellis’ investigation commenced after plaintiff filed a charge against defendant with the Department of Fair Employment and Housing on June 23, 2020 and filed a lawsuit on July 13, 2020. (Wells Decl. ¶ 31 & Ex. 14 at 3 [“On July 13, 2020, Ofc. Garza filed a civil lawsuit against the City. This investigation followed”].)

“The assertion of an avoidable consequences defense does not put a post-employment investigation directly at issue in the litigation. The employee necessarily could not have taken advantage of any corrective measures adopted in response to a post-employment investigation.” (City of Petaluma v. Superior Court (2016) 248 Cal.App.4th 1023, 1037.) “Accordingly, the City's assertion of the avoidable consequences doctrine does not constitute a waiver of any attorney-client or work product protection afforded to the post-employment investigation conducted by” Ellis. (Id. at 1037.)

Even though defendant has produced the Ellis Report (Lyon Decl. ¶ 8; Wells Decl. ¶ 31 & Ex. 14), this does not destroy the attorney-client privilege or work product protection as to the underlying documents connected to the investigation. (Kaiser Foundation Hospitals v. Superior Court (1998) 66 Cal.App.4th 1217, 1219–20, 1227 [finding that attorney-client privilege and work product doctrine not waived for communications between investigative personnel and employer’s attorneys even though employer produced substance of investigation].)

The motion is GRANTED. Plaintiff Matthew Garza’s subpoena issued to Ellis & Makus, LLP dated June 2, 2022 is QUASHED.