Judge: Jon R. Takasugi, Case: 20STCV21804, Date: 2022-08-17 Tentative Ruling

Case Number: 20STCV21804    Hearing Date: August 17, 2022    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendants’ motion for reconsideration is GRANTED.

On 6/9/2020, Plaintiff Sarah O. Clifton (Plaintiff) initiated this action. On 10/22/2021, Plaintiff filed a third amended complaint (TAC) against the American Civil Liberties Union of Southern California (ACLU-SC), the ACLU Foundation of Southern California (ACLU Foundation), Hector Villagra, and Jessica Farris (collectively, Defendants) alleging: (1) hostile work environment harassment; (2) discrimination; (3) retaliation in violation of FEHA; (4) failure to prevent harassment; (5) retaliation; (6) wrongful discharge; (7) violation of Labor Code section 1198.5; and (8) violation of Business and Professions Code section 17200. 

            On 5/20/2022, the Court granted Plaintiff’s motion to compel compliance and awarded $4,561.65 in sanctions.

            Now, Defendants ACLU-SC, ACLU Foundation, and Hector Villagra (collectively, Defendants) move for reconsideration of the Court’s ruling.

Legal Standard

Pursuant to Code of Civil Procedure section 1008, subdivision (a), a motion for reconsideration must be brought “within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.”  (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.)  

Discussion

            Defendants argue that they are entitled to reconsideration of the Court’s ruling awarding $4,561.65 in sanctions because Plaintiff filed misleading briefs with the Court which misrepresented the status of Defendants’ discovery production, and because there was a substantial justification for Defendants’ failure to produce 100% of document production by May 2022.

As to the first contention, Defendants set forth evidence to argue that Plaintiff’s statements with respect to discovery production at the time of the 5/20/2022 ruling were misleading and inaccurate. For example, in supplemental briefing requested by the Court, Plaintiff represented to the Court that Defendants had not produced any documents, stating: “Despite their promises, Defendants failed to produce any of the promised documents by April 15, 2022. Even now—almost two weeks after the fact—Plaintiff has received absolutely nothing.” Defendants contend that this statement was belied by the fact that Defendants had at that time produced up to 113,000 documents, including Plaintiff’s personnel records, Plaintiff’s entire Outlook mailbox, and emails from other ACLU personnel. Defendants also argue that Plaintiff misleadingly suggested that “estimates” provided by Defendants were “deadlines” that had been missed.

However, at the 3/30/2022 IDC, Defendants agreed to turn over the balance of remaining responses by 4/15/2022, and Plaintiff was ordered to submit supplemental briefing as to any outstanding issues that remained after that production. As such, Plaintiff’s supplemental briefing indicating that nothing had been produced by Defendants since their representation at the IDC does not appear to be intentionally misleading. Moreover, the Court’s minute order clearly stated that if Defendant did not comply, it could expect sanctions to be awarded: “if this goes to hearing on the motion (currently set for May 20, 2022) Defendant can expect monetary sanction to be imposed.” In spite of this clear statement, Defendants did not turn over the balance of remaining responses by 4/15/2022.

However, the Court is persuaded that new facts support Defendants’ second contention, i.e, that there was substantial justification for its failure to produce. Defendants submitted evidence that the failure to produce by 4/15/2022 was due to “…the late discovery that hundreds of privileged documents had to be pulled from the last set of documents after they had been Bates labeled and prepared for production” and because there “a bona fide good faith dispute with Plaintiff regarding the application and/or potential waiver of the attorney-client privilege, should Defendants produce the investigation report commissioned by Defendant ACLU SoCal (with the advice of counsel) in this matter.” (Motion, 7:14-15.) Moreover, Defendants noted that the 4/15/2022 production date was not a Court-ordered deadline, the motion to compel compliance was heard nine months before the fact discovery cutoff, and Plaintiff has not complained that Defendants refused or failed to produce any specific category of documents. Accordingly, the Court concludes based on these new facts that there was substantial justification for Defendants’ failure to produce by 4/15/2022.

            Based on these facts, Defendants’ motion for reconsideration is granted.

It is so ordered.

Dated:  August    , 2022

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

            Due to Covid-19, the court is strongly discouraging in-person appearances.  Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk.  The court encourages the parties wishing to argue to appear via L.A. Court Connect.  For more information, please contact the court clerk at (213) 633-0517.  Your understanding during these difficult times is appreciated.

Superior Court of California

County
of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s
motion for a protective order is GRANTED.

On 6/9/2020, Plaintiff Sarah O. Clifton (Plaintiff)
initiated this action. On 10/22/2021, Plaintiff filed a third amended complaint
(TAC) against the American Civil Liberties Union of Southern California
(ACLU-SC), the ACLU Foundation of Southern California (ACLU Foundation), Hector
Villagra, and Jessica Farris (collectively, Defendants) alleging: (1) hostile
work environment harassment; (2) discrimination; (3) retaliation in violation
of FEHA; (4) failure to prevent harassment; (5) retaliation; (6) wrongful
discharge; (7) violation of Labor Code section 1198.5; and (8) violation of
Business and Professions Code section 17200. 

            Now,
Defendant ACLU Foundation of Southern California (Defendant) moves for a
protective order.

Discussion

            The
instant motion concerns Plaintiff’s request for production of certain documents
which relate to Defendant’s investigation into Plaintiff’s claims. Defendant
contends that the waiver of attorney-client privilege is limited to the
third-party investigation report by, and communications with, Vida Thomas,
Esq., and does not extend to communications with Paul Hastings, LLP. Defendant
also argues that the privilege waiver should not extend to drafts of Ms.
Thomas’s report because Ms. Thomas was retained to conduct an investigation of
Plaintiff’s charges of discrimination for purposes of obtaining legal advice
and was not hired as part of a routine fact-finding mission. As a result,
earlier drafts remain privileged.

            As
noted by Defendant in reply, Plaintiff’s opposition concedes a number of points
including that “the waiver of the attorney-client privilege is limited to the
third party investigation report by and Defendants communications with Vida
Thomas, Esq.”; and that “Defendants’ communications with Paul Hastings, LLP on
all topics remain privileged.” (Reply, 3: 19-22.)

            However,
disputes remain as to: (1) whether the privilege waiver applies to drafts
of Ms. Thomas’s report; and (2) whether the waiver of the privilege extends to
communications between Ms. Thomas and Paul Hastings.

            The
Court concludes that the privilege waiver does not apply to either the drafts
of Ms. Thomas’s report or communications between Ms. Thomas and Paul Hastings.

            As
for the drafts of Ms. Thomas’s report, Defendant contends that they remain
privileged because “[a]ny draft report contains an amalgam of privileged
attorney-client communications and attorney work product, and the interviews
were for the sole purpose of providing legal advice.” (Reply, 7: 17-19.)

 It is not disputed that Ms. Thomas was
retained to conduct an investigation of Plaintiff’s charges of discrimination. However,
if a lawyer prepares a report that simply summarizes the investigation or
presents factual conclusions for management action, but does not contain
confidential legal advice, then the report is not privileged from discovery
even though it was prepared by an attorney. (See Wellpoint Health
Networks, Inc. v. Sup.Ct. (1997) 59 Cal.App.4th at 121-122.) The relevant
question, here, then is whether or not Ms. Thomas’s investigation was for the
purposes of providing legal advice, or whether it was a routine fact-finding
mission.

As noted by
Defendant, the fact that Ms. Thomas was retained to conduct an investigation of
Plaintiff’s charges of discrimination establishes a prima facie claim of
privilege, i.e., communication in the course of the lawyer-client relationship.
This “passes the burden to [Plaintiff] to make a prima facie showing that an
exception applie[s].” (Wellpoint Health Networks, Inc. v. Superior Court
(1997) 59 Cal. App. 4th 110, 123.) Plaintiff’s opposition does not contain any
substantive argument to show that Ms. Thomas was part of only a routine
fact-finding mission, and did not provide legal advice. Thus, while the Court
agrees that drafts of the report would not be privileged if Ms. Thomas’s
investigation was purely one of fact-finding, Plaintiff has not met her burden
to show that this was the case. (Ibid.) Moreover, Plaintiff cites no
authority to show that she is entitled to all versions of Ms. Thomas’s
report, rather the final investigative report.   

As for the
communications between Ms. Thomas and Paul Hastings, California courts have
consistently held that “the presence of third parties does not destroy
confidentiality if the disclosure was reasonably necessary to accomplish the
client's purpose in consulting counsel.” (Raytheon Co. v. Superior Court
(1989) 208 Cal. App. 3d 683, 687, citing Insurance Co. of North America v.
Superior Court (1980) 108 Cal.App.3d 758, 771; ; See also
Cal.Evid.Code § 912, subd, (d), which provides: “A disclosure in confidence of
a communication that is protected by a privilege provided by Section 954
(lawyer-client privilege), 966 (lawyer referral service-client privilege), 994
(physician-patient privilege), 1014 (psychotherapist-patient privilege), 1035.8
(sexual assault counselor-victim privilege), 1037.5 (domestic violence
counselor-victim privilege), or 1038 (human trafficking caseworker-victim
privilege), when disclosure is reasonably necessary for the accomplishment of
the purpose for which the lawyer, lawyer referral service, physician,
psychotherapist, sexual assault counselor, domestic violence counselor, or
human trafficking caseworker was consulted, is not a waiver of the privilege.)

Here, Ms.
Thomas is an attorney, who was retained by Defendants and conducted an
investigation on behalf of Defendants. Her communications are therefore
privileged absent any waiver. Similarly, Paul Hastings served as employment
counsel to Defendants, and the communications between Defendant and Paul
Hastings are privileged.

Thus, while
Ms. Thomas is not a client of Paul Hastings, LLP, or vise-versa, their
communications were made for the common purpose of providing legal advice to
Defendant in this matter, and thus appear to have been “necessary to accomplish
the client’s purpose in consulting counsel.” 
(Raytheon, supra, 208 Cal.App.3d at p. 687.) Moreover, the
attorney-client privilege is intended to “safeguard the confidential
relationship between clients and their attorneys so as to promote full and open
discussion of the facts and tactics surrounding individual legal matters.” (See
Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 732.)

In light of
this evidence, it is Plaintiff’s burden to show that the communications were
not confidential, that privilege was waived, or that the privilege does not
apply for other reasons. (See Reilly v. Greenwald & Hoffman, LLP
(2011) 196 Cal. App. 4th 891, 900, concluding that “Once a party establishes
that a privilege applies, the burden shifts to the party opposing the privilege
to demonstrate that the privilege did not apply, that an exception existed, or
that there was an express or implied waiver.”)

The only argument
advanced in Plaintiff’s opposition to show that the communications between
Ms.Thomas and Paul Hastings were not privileged was a single contention that “[s]uch
communications are not privileged as Ms. Thomas is not a client of Paul
Hastings, LLP. Further, because Ms. Thomas is a ‘third party,’ the disclosure
of any privileged information to her by Paul Hastings, LLP could potentially
break the privilege.” (3: 11-15.) This falls short of satisfying Plaintiff’s
burden. This is especially true given that, as noted above, disclosure to a third-parties
does not automatically constitute waiver.

            In
sum, the Court concludes that Plaintiff has not met her burden to show that she
is entitled to drafts of Ms. Thomas’s investigative report, or to
communications between Ms. Thomas and Paul Hastings.

            Based
on the foregoing, Defendant’s motion for a protective order is granted.

It is so ordered.

Dated:  August   
, 2022

   Hon. Jon R.
Takasugi

   Judge of the
Superior Court

Parties who intend to submit on this tentative must
send an email to the court at smcdept17@lacourt.org
by 4 p.m. the day prior as directed by the instructions provided on the court
website at www.lacourt.org.  If a party submits
on the tentative, the party’s email must include the case number and must
identify the party submitting on the tentative. 
If all parties to a motion submit, the court will adopt this
tentative as the final order.  If the department
does not receive an email indicating the parties are submitting on the
tentative and there are no appearances at the hearing, the motion may be placed
off calendar. 

            Due to Covid-19, the court is
strongly discouraging in-person appearances.  Parties, counsel, and court reporters present
are subject to temperature checks and health inquiries, and will be denied
entry if admission could create a public health risk.  The court encourages the parties wishing to
argue to appear via L.A. Court Connect. 
For more information, please contact the court clerk at (213)
633-0517.  Your understanding during
these difficult times is appreciated.