Judge: Stephen I. Goorvitch, Case: 23STCP04602, Date: 2024-04-26 Tentative Ruling
Case Number: 23STCP04602 Hearing Date: April 26, 2024 Dept: 82
Mabel
Frias v. Shaira Frias
Case
No. 23STCP04602
Motion
for Order Finding Communications are not Privileged
INTRODUCTION
Nominal
Respondent Luna Magic, Inc. (“Luna Magic”), represented by special counsel,
moves for an order finding that emails between Petitioner Mabel Frias (“Petitioner”
or “Plaintiff”) and her then-counsel (“Boyd Law”), which were transmitted
through Luna Magic’s server, are not confidential and not protected by the
attorney-client privilege. The motion is
granted with respect to communications on or after April 12, 2022. The motion is denied with respect to
communications before April 12, 2022.
RELEVANT PROCEDURAL HISTORY
On January 25, 2024, while represented by attorneys of Boyd
Law APC, Petitioner filed the operative, first amended petition for appointment
of a provisional director and for determination of invalidity of efforts to
terminate Petitioner. The petition names
Luna Magic as a nominal defendant/respondent.
On
February 16, 2024, Luna Magic filed the instant ex parte application. That same date, Petitioner filed an
opposition. The court (Beckloff, J.) construed
the ex parte application as a noticed motion and set the hearing for
April 26, 2024. During the hearing on
February 20, 2024, Judge Beckloff referred to Petitioner’s opposition as
“anemic” and indicated the court “was really surprised at the opposition,
because [Luna Magic’s requested relief] is a pretty substantive meaty issue.”
(See Notice of Lodging, [2/20/24 Transcript (“Tr.”)], 31:17-19, 35:5-6.) The court
noted that Petitioner’s opposition contained “no analysis of Holmes [v.
Petrovich Development Co., (2011) 191 Cal.App.4th 1047]” and no analysis of
“how it is that the server for Luna Magic Inc., that everybody is recognizing
as the server for Luna Magic Inc., is owned by your client. Just doesn’t make
sense. (Tr., 35:6-11.) The court
authorized additional briefing, but Petitioner—who is now represented by
O’Melveny & Myers, LLP—did not file a supplemental opposition.
DISCUSSION
Luna Magic contends that emails transmitted
between Petitioner and her attorneys, transmitted through Luna Magic’s server,
are not confidential or protected by the attorney-client privilege pursuant to Holmes
v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047. In Holmes, the Court of Appeal
affirmed the trial court’s ruling that permitted the introduction at trial of attorney-client
communications between the plaintiff and her litigation attorney. The trial court ruled that the plaintiff’s
emails using the defendants’ company computer were not protected by the
attorney-client privilege because they were not confidential. In affirming the trial court’s order, the
Court of Appeal set forth the following test:
Although a
communication between persons in an attorney-client relationship “does not lose
its privileged character for the sole reason that it is communicated by
electronic means or because persons involved in the delivery, facilitation, or
storage of electronic communication may have access to the content of the
communication” (§ 917, subd. (b)), this does not
mean that an electronic communication is privileged (1) when the electronic
means used belongs to the defendant; (2) the defendant has advised the
plaintiff that communications using electronic means are not private, may be
monitored, and may be used only for business purposes; and (3) the plaintiff is
aware of and agrees to these conditions. A communication under these
circumstances is not a “ ‘confidential communication between client and lawyer’
” within the meaning of section 952 because it
is not transmitted “by a means which, so far as the client is aware, discloses
the information to no third persons other than those who are present to further
the interest of the client in the consultation....” (Ibid.)
(Holmes,
supra, 191 Cal.App.4th at 1068.)
There
is no dispute in the instant case that Petitioner communicated with her
attorneys at Boyd Law through Luna Magic’s server. (See Shaira Frias Decl. ¶ 2.) Luna Magic’s Employee Handbook, effective
March 2022, includes the following relevant use of technology policies:
D. Luna Magic
Access to Technology Resources
All messages sent
and received, including personal messages, and all data and information stored
on Luna Magic Technology Resources (including on its electronic mail system,
voicemail system, or computer systems) are Luna Magic property regardless of
the content. Luna Magic reserves the right to access all of its Technology
Resources including its computers, voicemail, and electronic mail systems, at
any time, in its sole discretion, including without limitation anything sent
through Luna Magic’s network.
E. No Reasonable
Expectation of Privacy
Although Luna
Magic does not wish to examine personal information of its employees, on
occasion, Luna Magic may need to access its Technology Resources including
computer files, electronic mail messages, and voicemail messages. Employees
should understand, therefore, that they have no right of privacy with respect
to any messages or information created, collected, or maintained on Luna
Magic’s Technology Resources, including personal information or messages. Luna
Magic may, at its discretion, inspect all files or messages on its Technology
Resources at any time for any reason. Luna Magic may also monitor its
Technology Resources at any time in order to confirm compliance with its
policies, for purposes of legal proceedings, to investigate misconduct, to locate
information, or for any other business purpose.
(Id.,
Exh. B at 33.) As an employee of Luna
Magic, Petitioner was subject to these policies. (Id. ¶ 5.)
Further, in January 2022, Petitioner hired a consultant to prepare the
2022 Employee Handbook. (Id. ¶ 7, Exh.
C.) On April 12, 2022, after the 2022
Employee Handbook was finalized, Petitioner sent an email to company staff
informing them that they should review and electronically sign the
handbook. (Id. ¶¶ 9-11, Exh. E.) This evidence demonstrates that Petitioner
was aware of the 2022 Employee Handbook.
The
court finds that Petitioner agreed to be bound by these conditions. Mabel Shaira hired a consultant to prepare
the employee handbook. (Shaira Frias
Decl. ¶ 7.) Mabel Shaira received a
draft of the handbook for review. (Id.,
¶ 8.) Once the handbook was finalized,
Mabel Shaira sent an email asking all employees to review the handbook and
electronically sign the certification. (See
id., Exh. E.)[1] This record is sufficient to establish that
Mabel Shaira agreed to the relevant provisions of the technology policy. Plaintiff does not dispute that she agreed to
be bound by these terms. Nor does Plaintiff
address this element under the Holmes test.
Therefore, the court finds that the movant has satisfied the relevant
criteria.
Plaintiff argues that she owned Luna
Magic’s email server and therefore did not waive the attorney-client
privilege. (Oppo. 1; Mabel Frias Decl. ¶
3.) Mabel Frias provides a receipt
demonstrating that she paid $14.95 for the LunaMagic.com domain name for a term
of approximately 1.8 years. (See Mabel
Frias Decl., Exh. #1.) By contrast, in a
supplemental declaration, Defendant Shaira Frias submits evidence, including a
credit card statement, showing that Shaira Frias paid $2,095.00 to GoDaddy.com
to buy the lunamagic.com domain name.
(Suppl. Shaira Frias Decl. ¶ 3, Exh. G.)
The purpose of Mabel Frias’s payment was “to anonymize ownership of the
lunamagic.com domain name.” (Suppl.
Shaira Frias Decl. ¶ 5.) The court finds
Shaira Frias’s declaration and evidence more credible. Regardless, even if Mabel Frias purchased the
domain name, her role in preparing and distributing the employee handbook
demonstrates that she intended the company’s “electronic mail systems” to be
governed by this technology policy.
Based upon the foregoing, the court
finds that all elements of the Holmes test are satisfied with respect to
email communications between Petitioner and her attorney transmitted through
the lunamagic.com server on or after April 12, 2022, the date the 2022 Employee
Handbook was finalized. Petitioner does
not satisfy the criteria prior to the final date of the employee handbook. The court has not reviewed any of the
potentially-privileged email in ruling on this motion.
Luna
Magic requests in camera review so that the court can confirm that the
emails were transmitted through the lunamagic.com server, but not to review the
contents of the emails or determine if the emails are privileged. At the hearing, the court will discuss with
the parties whether in camera review is necessary and appropriate under
the circumstances.
CONCLUSION
Based
upon the foregoing, the court orders as follows:
1. LunaMagic’s motion is granted in part
and denied in part.
2. The court is granted only insofar as
the court finds that Petitioner’s email with her counsel that were transmitted
through the company’s server on or after April 12, 2022, are not privileged
under Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th
1047.
3. The motion is otherwise denied.
4. Counsel for LunaMagic shall provide
notice and file proof of service with the court.