Judge Curtis A. Kin, Case 21STCV10573 2022-09-08 Tentative Ruling

Judge: Curtis A. Kin, Case: 21STCV10573, Date: 2022-09-08 Tentative Ruling

Case Number: 21STCV10573 Hearing Date: September 8, 2022 Dept: 72

MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS

Date: 9/8/22 (8:30 AM)

Case: Jane Doe v. California State Senate et al. (21STCV10573)

TENTATIVE RULING:

Plaintiff Jane Doe’s Motion to Compel Further Responses to Request for Production of Documents, Set One is GRANTED.

Plaintiff Jane Doe moves to compel further responses to Request for Production, Set One, Nos. 1-14 and 20 from defendant Workplace Conduct Unit (“WCU”). In response, the Legislative Counsel Bureau (“LCB”), wherein WCU is contained, asserted the attorney-client privilege and served a privilege log regarding certain documents. (Moores Decl. ¶ 6 & Ex. D.)

Under statute, the LCB has an attorney-client relationship with each Member of the Legislature, comprised of the Assembly and the Senate. (Gov. Code §§ 9000, 10207.) WCU is a unit within LCB that investigates reports and complaints of workplace misconduct. (Gov. Code § 10249(a).) Communications related to attorney investigations are subject to the attorney-client privilege. (City of Petaluma v. Superior Court (2016) 248 Cal.App.4th 1023, 1034.)

Plaintiff does not dispute that the requested documents implicate the attorney-client privilege. Rather, plaintiff contends that defendants waived the attorney-client privilege through the purported assertion of the avoidable consequences defense in the Answer and discovery responses. (Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 128 [agreeing that “the employer’s injection into the lawsuit of an issue concerning the adequacy of the investigation where the investigation was undertaken by an attorney or law firm must result in waiver of the attorney-client privilege and work product doctrine”].)

Because LCB demonstrates that the documents it seeks to withhold from production are protected by the attorney-client privilege, the burden shifts to plaintiff to demonstrate a waiver of the privilege. (Roman Catholic Archbishop of Los Angeles v. Superior Court (2005) 131 Cal.App.4th 417, 442.)

“If a defendant employer hopes to prevail by showing that it investigated an employee's complaint and took action appropriate to the findings of the investigation, then it will have put the adequacy of the investigation directly at issue, and cannot stand on the attorney-client privilege or work product doctrine to preclude a thorough examination of its adequacy.” (Wellpoint, 59 Cal.App.4th at 128.) “[P]rior to any finding on the question of waiver,” the employee “must file an acceptable complaint. Only then, and only if defendants’ answer or discovery responses indicate the possibility of a defense based on thorough investigation and appropriate corrective response, can a finding of waiver be made.” (Wellpoint, 59 Cal.App.4th at 129.)

Here, defendants assert that the WCU’s investigation of plaintiff’s complaints was adequate and that it took appropriate remedial action in their Answer and discovery responses.

In the Answer, defendants assert: “Plaintiff is barred from recovery because Defendants promulgated and disseminated throughout their workplace policies and procedures designed to prevent prohibited harassment, discrimination, and/or retaliation and to the extent Plaintiff knew about these policies and procedures and unreasonably failed to take advantage of these preventive or corrective opportunities, including, but not limited to, using the complaint procedure provided by Defendants, that would otherwise have prevented some or all of Plaintiff’s alleged harm.” (Answer, Seventeenth Additional Defense.)

In discovery responses, when asked whether it contends that plaintiff failed to use any internal complaint procedures, defendant California State Senate responded: “Defendant contends that Plaintiff failed to employ its internal complaint and investigation process within a reasonable timeframe.” (Reed Decl. ¶ 26 & Ex. 27 at 10:20-21.) To the same inquiry, defendant Senator Archuleta responded: “Yes, Defendant contends that Plaintiff failed to employ the Senate’s internal complaint and investigation process by making a complaint to Workplace Conduct Unit as early as possible and cooperating with the investigation.” (Reed Decl. ¶ 27 & Ex. 28 at 11:8-10.) Indeed, all the defendants have so contended in their discovery responses. (See also Reed Decl. ¶ 25 & Ex. 26 at 4:10-11 [Defendant WCU stating: “Plaintiff failed to employ the Senate's internal complaint and investigation process by making a complaint to Workplace Conduct Unit as early as possible and cooperating with the investigation”]; Reed Decl. ¶ 28 & Ex. 29 at 12:20-21 [Defendant Wilcox stating: “Defendant contends that Plaintiff failed to employ its internal complaint and investigation process as early as possible”].)

Further, in support of the defendants’ seventeenth affirmative defense, WCU recites the defendants’ version of the facts relating to the investigation of plaintiff’s complaints: “Plaintiff waited several months after the alleged conduct before ever informing a supervisor of Senator Archuleta' s alleged conduct. Even after informing Don Wilcox on October 25, 2019, of some of the alleged conduct, Plaintiff discouraged him from escalating the complaint. Once the Workplace Conduct Unit initiated an investigation into Plaintiff’s complaints, it took several attempts to contact Plaintiff to clarify her allegations. After several unreturned attempts to contact Plaintiff, on July 28, 2020, Plaintiff spoke on the phone to Lindsay Gold, an investigator in the Workplace Conduct Unit. During that conversation, Plaintiff informed Ms. Gold that she would participate in an investigation of her complaints but that she wanted to hire an attorney to represent her first. She specifically indicated that she would reach out to Ms. Gold once she was ready to participate in the investigation: ‘I will reach out as soon as I have an updated [sic] on this matter.’ Despite this promise, Plaintiff never again contacted Ms. Gold or the Workplace Conduct Unit.” (Ex. 26 at 17:15-25.)

While defendants maintain that plaintiff did not follow the complaint procedure, defendants also state that they unsuccessfully attempted to obtain the cooperation of plaintiff to participate in the investigation. In the Answer and discovery responses, essentially argue that they proceeded as far as they could go in investigating plaintiff’s complaint but could not proceed further or implement any remedial action due to plaintiff’s lack of cooperation. Accordingly, defendants (including client defendants California State Senate and Senator Archuleta, who hold the privilege) place the adequacy of the investigation and remedial action at issue, thereby waiving the attorney-client privilege.

Plaintiff cannot defeat defendants’ avoidable consequences defense without evidence pertaining to the reasonableness of steps that defendants took to prevent the harassment about which plaintiff complained. (See Gov. Code § 12940(j)(1) [“Harassment of an employee . . . shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action . . . . An entity shall take all reasonable steps to prevent harassment from occurring”].) Because defendant “interject[ed] a defense based on the investigation,” defendant waived the attorney-client privilege. (Wellpoint, 59 Cal.App.4th at 129.)

The motion is GRANTED. Within fifteen (15) days hereof, defendant WCU is ordered to serve further responses, without objection, to Request for Production, Set One, Nos. 1-14 and 20 and produce the documents listed in the privilege log attached to defense counsel’s declaration as Exhibit D.

Plaintiff’s request for sanctions is DENIED. Given the complexities surrounding the attorney-client privilege, defendant WCU opposed this motion with substantial justification.