Judge Curtis A. Kin, Case 21STCV26623 2023-01-17 Tentative Ruling

Judge: Curtis A. Kin, Case: 21STCV26623, Date: 2023-01-17 Tentative Ruling

Case Number: 21STCV26623 Hearing Date: January 17, 2023 Dept: 72

MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET ONE

Date: 1/17/23 (8:30 AM)

Case: Gloria Haro v. City of Bell Gardens et al. (21STCV26623)

TENTATIVE RULING:

Plaintiff Gloria Haro’s Motion to Compel Further Responses to Special Interrogatories, Set One is DENIED.

Plaintiff Gloria Haro moves to compel further responses from defendant City of Bell Gardens (“City”) to Special Interrogatories, Set One, Nos. 17 and 22, as set forth below:

SPECIAL INTERROGATORY NO. 17:

If YOUR answer to Special Interrogatory No. 15 [asking if an investigation was conducted after plaintiff’s complaint to her Union and City Manager] is in the affirmative, please state all facts pertaining to the findings of said investigation.

SPECIAL INTERROGATORY NO. 22:

If YOUR answer to Special Interrogatory No. 20 [asking if an investigation concerning plaintiff’s complaint to City of Bell Gardens about William Koholokula was conducted] is in the affirmative, please state all facts pertaining to the investigation.

As a preliminary matter, the Court notes that plaintiff reserved this motion as a motion to compel discovery. Plaintiff also titles the motion in the caption as a motion to compel responses. However, the instant motion is a motion to compel further responses, which is subject to different calendaring restrictions than a motion to compel further responses or further discovery.

Further misclassification of motions in the Court’s reservation system by the moving party may subject the motion to a continuance and delay in resolution of the request for relief.

City opposes this motion based on the attorney-client privilege. City’s Manager, Michael O’Kelly, declares that he directed Human Resources Manager Richard Knott to investigate plaintiff’s allegations of misconduct against defendant William Koholokula. (O’Kelly Decl. ¶¶ 3, 4.) Noting plaintiff had sued City of Bell Gardens before, O’Kelly had the intention of forwarding the allegations to City’s labor attorneys, Liebert Cassidy, and Whitmore (“Leibert”), to obtain legal advice concerning plaintiff’s claims. (Id. ¶ 4.) Knott prepared a report, which O’Kelly forwarded to Liebert. (Id. ¶ 5.) Liebert hired the Shaw Law Group (“Shaw”) to further investigate the allegations. (Ibid.) An attorney with Shaw conducted additional fact-finding. (Ibid.) Shaw provided a report to Liebert, which O’Kelly received. (Id. ¶ 6.) The Shaw report was labeled as “Attorney-Client Privileged/Attorney Work Product.” (Id. & Ex. A.) O’Kelly received legal advice from Liebert concerning plaintiff’s claims based on the reports from Knott and Shaw. (Id. ¶ 7.)

With respect to the investigation conducted by Shaw, the attorney-client privilege protects information obtained from an 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”].) O’Kelly declares that attorney Shaw conducted fact-finding and provided a report to Liebert, which O’Kelly received. (O’Kelly Decl. ¶¶ 5, 6.) Based on the O’Kelly declaration, City demonstrates that facts pertaining to Shaw’s investigation are protected by the attorney-client privilege.

With respect to Knott’s investigation, even though Knott is not an attorney, where “the dominant purpose of the reports was for transmittal to an attorney in the course of the professional attorney-client relationship under circumstances where [the client] expected confidentiality,” the attorney-client privilege applies. (Scripps Health v. Superior Court (2003) 109 Cal.App.4th 529, 534.) O’Kelly declares that he directed Knott to investigate plaintiff’s allegations with the intention of having Liebert, City’s labor attorneys, provide legal advice. (O’Kelly Decl. ¶ 4.) O’Kelly then forwarded Knott’s report to Liebert. (Id. ¶ 5.) Knott’s report has been kept confidential since its preparation. (Id. ¶ 8.) Based on these averments, City demonstrates that the dominant purpose of the Knott report is transmittal to an attorney pursuant to an attorney-client relationship. City demonstrates that facts pertaining to Knott’s investigation are protected by the attorney-client privilege.

Because City demonstrates that the information it seeks to withhold from discovery is 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.)

Plaintiff contends that City waived the attorney-client privilege through several affirmative defenses in the Answer. Based on the affirmative defenses cited by plaintiff, City alleges that it properly and in good faith exercised managerial discretion in its decisions and actions. (Answer ¶ 16.) City also contends it made its decisions for non-discriminatory and non-retaliatory business reasons. (Id. ¶ 17.) Conversely, City contends that plaintiff is the proximate cause of her damages because she acted in bad faith. (Id. ¶ 18.) City also alleges that it did not ratify any unlawful conduct and that its conduct was lawful and justified. (Id. ¶¶ 19, 21, 24.) City also maintains that it did not fail to take immediate and appropriate corrective action. (Id. ¶ 31.)

Plaintiff contends that these affirmative defenses were supported by City’s investigations. “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 Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 128.) However, none of these affirmative defenses references any investigation. Plaintiff merely speculates that City will rely on its investigation of plaintiff’s allegations in its defense.

Arguably, the thirty-first affirmative defense implicates City’s investigation, which could be described as a “corrective action.” (Answer ¶ 31.) However, City confirms that it “does not intend to rely on any investigation report to prove a defense or to support its denial of plaintiff’s allegations.” (Opp. at 4:24-25.)

Plaintiff did not file any reply addressing the O’Kelly declaration or City’s assertion that it will not rely on any investigation in its defense. Consequently, plaintiff fails to meet her burden to demonstrate that City waived the attorney-client privilege.

The motion is DENIED.