Judge: Edward B. Moreton, Jr., Case: 20SMCV00974, Date: 2023-01-24 Tentative Ruling

Case Number: 20SMCV00974    Hearing Date: January 24, 2023    Dept: 205

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

BACKGROUND

This case arises from an employment dispute.  Plaintiff Maureen Atencio alleges she was harassed and discriminated against by Defendant Reading International’s (“Reading”) CFO, Defendant Gilbert Avanes.  Avanes would “shush” Plaintiff , call women employees “nobodies” or “stupid”, and yell and scream at them.  Plaintiff made an anonymous complaint via the company’s internal complaint system, complaining of Avanes’ discriminatory and harassing conduct towards women and alleged overtime violations.  Immediately after her complaint, she claims Avanes began retaliating against her, by taking away important job duties and removing Plaintiff from certain reporting committees.  Plaintiff was then interviewed by Defendant’s counsel as part of an investigation into the anonymous complaint, and during the interview, Plaintiff again complained about Avanes’ wrongful conduct including that Avanes was retaliating against her because of her anonymous complaint.  Within months of making her complaint and participating in the investigation, she claims that Reading retaliated against her by firing her at Avanes’ recommendation. 

Defendants deny any wrongdoing.  They claim the decision to fire Plaintiff was part of a directive from the Board of Directors to reduce general and administrative expenses.  As part of the directive, Reading’s Vice President of Global Operations, Andrzei Matyczynski, recommended the elimination of various positions, including Plaintiff’s job. 

This hearing is on Plaintiff’s motion to compel further responses to (1) her fourth set of requests for admissions, Request No. 78 and (2) her fourth set of special interrogatories, Interrogatory No. 108. 

DISCUSSION

Request for Admission No. 78

Plaintiff seeks to compel a further response to her Request for Admission No. 78 which states “Admit in October 2019 YOU selected PLAINTIFF’s position for elimination resulting in PLAINTIFF’s termination.”  There is no dispute this request seeks clearly relevant information.  Instead, Defendants raise four arguments.  First, Defendants argue that Plaintiff failed to raise this request during an informal discovery conference (“IDC”), and under this department’s rules, an “IDC or permission from the court must occur prior to filing any motions to compel or compel further discovery responses.”  Plaintiff represents, however, that the issue was discussed during a December 5, 2022 IDC.  As there is no official record of what was discussed at the IDC, the Court will accept counsel’s representation (as an officer of the Court) that the issue was raised at an IDC. 

Second, Defendants complain that while Plaintiff submitted a joint statement that included the text of the request, it failed to also include the definition of “YOU” which is the crux of the parties’ dispute.  According to Defendants, this failure means Plaintiff did not comply with the Court’s requirement of submitting a joint statement that includes the text of the discovery request.  The Court rejects this technical argument as a basis to deny Plaintiff’s motion to compel further responses.  Plaintiff has sufficiently described the request to give notice to Defendants and the Court of the disputed request.

Third, Defendants contend that the definition of “YOU” is overbroad.  Plaintiff defines “YOU” to include “Defendant, Reading International Incorporated and include any of its present and former investigators, agents, officers, directors, employees, representatives, subsidiaries, divisions, affiliates, predecessors-in-interest, successors-in-interest, attorneys and any other PERSON (as defined below) acting for or on its behalf.”  Defendants argue that “given the overreach of the defined term ‘YOU’, it [was] impossible to respond to this request with a simpl[e] admit or deny.”     

Code of Civil Procedure section 2033.220, subdivision (b) provides that a party must either (1) “[a]dmit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party” or (2) “[d]eny so much of the matter involved in the request as is untrue.” (Code Civ. Proc. § 2033.220, subd. (b), emphasis added.) 

The emphasized language indicates that it is the burden of the responding party to provide qualifications and clarifications in responses, if the lack of clarity would otherwise prevent the responding party from being able to affirmatively admit or deny.  Here, Defendants’ basis for not affirmatively admitting or denying is the overbroad definition of “YOU.”  If this is the case, it is still Defendants’ responsibility to admit or deny the request, and they may provide their own “reasonabl[e] and clear[] qualifi[cations]” in cases where they take issue with how Plaintiff has defined certain terms. (Code Civ. Proc. § 2033.220, subd. (b).)

Fourth, Defendants contend they have fully and completely responded to the Request.  Defendant’s supplemental response states: “In October 2019, Andrzei Matyczynski provided his recommendations for the G&A Restructuring Plan.  The G&A Restructuring Plan recommended the elimination of various positions, including Plaintiff’s position.  The plan was subsequently accepted and, thereafter, the individuals holding the positions to be eliminated were terminated.”  This response does not admit, deny or specify any matters on which Defendants lack sufficient information or knowledge to admit or deny and is therefore inadequate.  Defendants are directed to respond fully to the request as reasonably qualified by their definition of “YOU.”    

Accordingly, the Court grants Plaintiff’s motion to compel a further response to her Request for Admission No. 78.      

Special Interrogatory No. 108

Plaintiff seeks to compel a response to her Special Interrogatory No. 108 which asks: “If anyone other than Gilbert Avenes, Teri Moore, PLAINTIFF and Melissa Looby were interviewed by Ellen Bandel in the investigation undertaken by Greenberg Traurig regarding the June 11, 2019 Lighthouse Complaint, case number 9061120192316, IDENTIFY those PERSONS also interviewed.”  This interrogatory seeks relevant information as Plaintiff claims the witnesses’ participation in the investigation directly caused Defendants to terminate the witnesses’ employment.  Defendants argue the anonymous complaint did not include any gender based or harassment claims.  The anonymous complaint states verbatim: “Subject Line: corporate secrets at Reading International[.]  Company CFO requesting me not to disclose to certain mgt. not unethical, but borderline. makes all staff copy him. breaks OT laws. office manager lies to labor attorney. people very unhappy and scared. office manager gossips.  company needs HR.  one girl is bulimic. i throw up. do not make him perm CFO. his door always closed.”  But Plaintiff has alleged that she raised gender-based and harassment claims with counsel during the course of the investigation into the anonymous complaint.  Accordingly, whether the anonymous complaint itself includes claims of discrimination and/or harassment is beside the point.    

Defendants next argue that the identities of the witnesses interviewed by counsel are protected by the attorney client privilege and the attorney work product doctrine.  The Court agrees.  Pre-litigation investigations conducted by counsel for the purpose of providing legal advice are protected by the attorney client privilege.  (Wellpoint Health Networks Inc. v. Superior Court (1997) 59 Cal.App.4^th 110, 123-124 (pre-litigation investigation by outside counsel into charges of alleged discrimination protected by attorney client privilege); City of Petaluma v. Superior Court (2016) 248 Cal.App. 4^th 1023, 1033-1036 (fact investigation by outside counsel that would be basis for city attorney to provide legal advice to city was protected by attorney client privilege).)  Here, there is no dispute that outside counsel (Greenberg Traurig) was retained to conduct an investigation into an anonymous complaint for the purpose of providing legal advice to Reading.  While Plaintiff is correct that Wellpoint and Petaluma do not discuss whether the identities of witnesses interviewed in a pre-litigation investigation are protected by the attorney client privilege, the Court finds that this result naturally follows from their holdings; where the investigation itself is privileged, the components of that investigation including who was interviewed would be protected by the privilege as well.  Accordingly, the pre-litigation investigation, including the identities of witnesses who were interviewed, is protected by the attorney-client privilege.   

The identities of witnesses interviewed are also protected by the attorney work product doctrine.  The California Supreme Court has held that the identity of witnesses from whom defense counsel has obtained statements may be entitled to absolute or qualified work product protection.  (Coito v. Superior Court (2012) 54 Cal.4^th 480, 486.)  To invoke the privilege, “defendant must persuade the trial court that disclosure would reveal the attorney's tactics, impressions, or evaluation of the case (absolute privilege) or would result in opposing counsel taking undue advantage of the attorney’s industry or efforts (qualified privilege).”  (Id.)  Here, Defendants argue that the identities of witnesses interviewed reflects upon counsel’s tactics, impressions, conclusions, opinions, legal research or theories because they identify persons counsel deemed important enough to interview.  According to Defendants, the anonymous complaint was broad and implicated a substantial number of potential employee witnesses; accordingly, the selection of the few witnesses counsel chose to interview would reveal counsel’s tactics, impressions and opinions.  Under these facts and the holding in Coito, the Court concludes the identification of the witnesses would infringe on an absolute work product privilege.  (Coito, 54 Cal.4^th at 501 (“[D]isclosing a list of witnesses from whom an attorney has taken recorded statements may, in some instances, reveal the attorney’s impressions of the case. Take, for example, a bus accident involving 50 surviving passengers and an allegation that the driver fell asleep at the wheel. If an attorney for one of the passengers took recorded statements from only 10 individuals, disclosure of the list may well indicate the attorney’s evaluation or conclusion as to which witnesses were in the best position to see the cause of the accident. Such information may be entitled to absolute privilege under section 2018.030, subdivision (a).”).)

The Court next considers whether Defendants have waived the privilege.              Plaintiff argues Defendants waived the privilege because “its employees [Gilbert Avanes and Terri Moore] have already disclosed the identities of certain individuals interviewed during the investigation.”  The Court disagrees.  Initially, asking for an attorney’s list of all employees interviewed is materially different than asking employees if they were interviewed.   Moreover, Avanes and Moore were deposed in their individual capacities and not as representatives of Reading.  Accordingly, they could not have waived the attorney client privilege on behalf of Reading.  Further, the attorney is the exclusive holder of the work product privilege (State Comp. Ins. Fund v. Superior Court (2001) 91 Cal.App.4^th 1080, 1091), and therefore, Avanes and Moore could not have waived the work product protection. 

Plaintiff next argues Defendants have waived the privilege because they have raised the “affirmative defense that an adequate-discrete investigation was conducted into Plaintiff’s complaints by [defense] counsel.”  Plaintiff points to Defendant’s fourth affirmative defense which states:  “As a separate defense to the Complaint and to each cause of action therein, Defendants allege that Plaintiff is barred from any recovery because Defendants have in place and implemented, in good faith, policies, procedures and other measures that reasonably should have prevented the harassment, discrimination and/or retaliation Plaintiff alleges and Plaintiff unreasonably failed to invoke those measures or take other corrective actions to stop the alleged harassment, discrimination and/or retaliation.” 

This affirmative defense is otherwise known as the “avoidable consequences defense.”  The California Supreme Court has described the avoidable consequences defense as having three elements: “(1) the employer took reasonable steps to prevent and correct workplace sexual harassment; (2) the employee unreasonably failed to use the preventive and corrective measures that the employer provided; and (3) reasonable use of the employer's procedures would have prevented at least some of the harm that the employee suffered.”  (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1044.)  The defense allows an employer to escape liability for those damages “the employee more likely than not could have prevented with reasonable effort and without undue risk, expense, or humiliation, by taking advantage of the employer's internal complaint procedures appropriately designed to prevent and eliminate sexual harassment.”  (Ibid.)  By raising this defense, Defendants have put the investigation at issue because Plaintiff claims she did report the harassment and discrimination in the context of the investigation into the anonymous complaint.  Even if Defendants are not relying on the investigation as a defense to Plaintiff’s claims, they are claiming Plaintiff failed to use reasonable measures made available by Defendant to report and prevent discrimination, and the investigation, including Plaintiff’s statements to the investigator(s), is Plaintiff’s rebuttal to that defense.  Plaintiff cannot defeat Defendants’ avoidable consequences defense without evidence pertaining to the investigation.  Accordingly, the Court concludes Defendants have put the investigation at issue, and therefore, waived the privilege.  City of Petaluma, 248 Cal.App. 4^th at 1036-1037 (“The assertion of the avoidable consequences defense may put the adequacy of an investigation into issue if the person was still employed and able to take advantage of any corrective measures the employer undertook as a result of the investigation.”); Leuders v. Cal. Dep’t of Alcoholic Bev. Control, 2019 Cal. Super. LEXIS 33265 at *3-*11 (employer waived privilege as to pre-termination investigation when it raised an avoidable consequences defense); Doe v. Cal. State Senate, 2022 Cal. Super. LEXIS 56564 at *6 (defendant’s avoidable consequences defense put pre-termination investigation at issue because Plaintiff could not defeat the defense without reference to the investigation).) 

CONCLUSION

Based on the foregoing, the Court GRANTS Plaintiff’s motion to compel further responses to Request for Admission No. 78 and GRANTS Plaintiff’s motion to compel further responses to Special Interrogatory No. 108. 

IT IS SO ORDERED.

DATED: January 24, 2023                                                   ___________________________

Edward B. Moreton, Jr.

Judge of the Superior Court