Judge: Loren G. Freestone, Case: 37-2022-00004671-CU-OE-CTL, Date: 2023-12-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 07, 2023

12/08/2023  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  Other employment Discovery Hearing 37-2022-00004671-CU-OE-CTL CUMMINS VS THE CITY OF NATIONAL CITY [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Plaintiff Ashley Cummins' motion to compel production of subpoenaed business records from third-party Meyers Nave is GRANTED.

'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. The defendant cannot have it both ways. If it chooses this course, it does so with the understanding that the attorney-client privilege and the work product doctrine are thereby waived.' (Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 128.) In Wellpoint, the court held it was too early to determine whether there had been such a waiver. A demurrer had been sustained, there was no complaint on file, and no indication of defense strategy.

The court noted that the yet-to-be-filed amended complaint may have dropped the harassment claim.

The court also noted that even if the new complaint reasserted a harassment claim, the defendants may have chosen to defend solely on the ground that the alleged misconduct either never occurred or was not impermissibly motivated. The court held a finding of waiver could only be made if the defendant' answer or other documents in the case indicate at least 'the possibility of a defense based on thorough investigation and appropriate corrective response.' (Id. at p. 129.) Here, unlike Wellpoint, there is sufficient evidence to indicate at least the 'possibility' that Defendants defend by arguing it adequately investigated Cummins' complaints and responded appropriately.

Cummins' specifically alleges: 'Ms. Cummins' supervisory officers were informed and received numerous complaints and reports from Ms. Cummins regarding the sex, gender and sexual-orientation-based harassment . . . and did nothing to protect Ms. Cummins or otherwise prevent such harassment from continuing.' (FAC ¶ 49; Compl.

42.) 'Even after Ms. Cummins complained about the offensive comments and conduct, Defendants did not do anything to try to curb or stop it from continuing.' (FAC ¶ 50; Compl. 43.) 'Defendants failed to make an adequate response and investigation into the harassing . . . conduct of Calendar No.: Event ID:  TENTATIVE RULINGS

3018297  38 CASE NUMBER: CASE TITLE:  CUMMINS VS THE CITY OF NATIONAL CITY [IMAGED]  37-2022-00004671-CU-OE-CTL Estabrook and his male counterparts, including the failure to adequately investigate, intervene, or respond to such complaints. Instead, Defendants condoned, encouraged, tolerated, sanctioned, ratified, approved of, and/or acquiesced in the above-described harassment . . .' (FAC ¶ 85; Compl. ¶ 80.) Defendants' answer to the initial complaint, which currently stand as their answer to the amended complaint, generally denies those allegations, thus putting them in issue. (See Carrasco v. Craft (1985) 164 Cal.App.3d 796, 809.) Defendants' answer also asserts affirmative defenses putting the investigation at issue. For example, the twenty-first affirmative defense is based on the avoidable consequences doctrine, which puts in issue, among other things, 'anything tending to show that the employer took effective steps to encourage victims to come forward with complaints of unwelcome sexual conduct and to respond effectively to their complaints.' (See State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1044–1046.) The twenty-ninth affirmative defense alleges that Defendants were reasonably diligent in discharging their mandatory duties, which is presumably intended to encompass the statutory obligation to 'take all reasonable steps to prevent harassment from occurring,' the 'most significant' first step being 'a prompt investigation to determine whether the complaint is justified.' (Gov. Code, § 12940, subd. (j)(1); see Bradley v. Dept. of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1612, 1630–1631.) The thirty-second affirmative defense also generally alleges that Defendants 'acted reasonably and in good faith at all time material hereto based on all relevant facts and circumstances known to it.' Finally, Defendants' opposition to this motion indicates that Defendants are trying to 'have it both ways.' Defendants argue that they should be allowed to defend based on 'the existence of the investigation itself, the investigation's findings, or any fact included within the final report' to the extent documents evidencing those facts have already been produced to Cummins, but at the same time argue Cummins should not receive the remaining pieces of the investigation file needed for a thorough examination of its adequacy. Defendants also assert that they should be allowed to defend the case with the materials they are currently seeking to withhold '[s]hould Plaintiff place the adequacy of the investigation at issue.' As set forth above, Cummins has allegedly challenged the adequacy of the investigation at issue.

Defendants cannot withhold the documents as privileged up until the moment they seek to introduce them at trial.

In light of the possibility (perhaps even probability) that Defendants intend to raise the investigation as part of their defense, any privilege or work-product protection that would otherwise attach to the investigation file is waived. The motion is therefore granted. Meyers Nave shall produce the investigation file within 20 days.

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