Case Name: Tappé v. Board of Trustees of the California State University, et al.
Case No.: 17-CV-320217

This is a retaliation action initiated by plaintiff Elinor Tappé against defendants Board of Trustees of California State University (“CSU”), San Jose State University (“SJSU”), and Paul Lanning (“Lanning”).

According to the allegations in the first amended complaint (“FAC”), Plaintiff was employed by CSU and SJSU as Assistant Vice President of Development and Executive Director of Capital Campaigns. (FAC, ¶ 6.) Shortly after starting her job, Plaintiff discovered numerous recurrent instances of misappropriation of donor funding committed by various employees, including Lanning. (Id. at ¶ 7.) For example, certain donations were promoted as being used for scholarships, but were actually used for other purposes. (Ibid.)

Pursuant to SJSU procedures, Plaintiff attempted to report the misappropriation to the school. (FAC, ¶ 8.) As a result, the defendants retaliated against, harassed, humiliated, intimidated, and ultimately terminated her. (Id. at ¶¶ 9-10.) Plaintiff subsequently filed a complaint with the CSU Office of the Chancellor, who determined she had not been retaliated against. (Id. at ¶ 11.)

Plaintiff asserts two causes of action for retaliation under Government Code section 8457.12 and Labor Code section 1102.5.

The present matter involves a discovery dispute. Plaintiff served a deposition subpoena for the production of business records on attorney Liz Paris (“Paris”) (the “Subpoena”), who CSU and Lanning hired to conduct a pre-litigation investigation of Plaintiff’s claims. (Naran Decl., Exh. B; Paris Decl., ¶ 3.) The Subpoena seeks Plaintiff’s case file, the final and draft versions of the investigation report pertaining to Plaintiff, all e-mails between Paris and CSU or SJSU relating to Plaintiff, documents provided to Paris in connection with witness interviews, and all bills and payment information for services Paris provided to CSU and/or SJSU for the investigation into Plaintiff’s retaliation claims. (Naran Decl., Exh. B.) Paris served formal written objections to the Subpoena and CSU’s counsel requested it be withdrawn on the basis it seeks information protected by the attorney-client privilege and attorney work product doctrine. (Id. at ¶ 8; Paris Decl., ¶ 5.) CSU and Plaintiff met and conferred on the issues of attorney-client privilege and attorney work product doctrine but were unable to resolve the dispute, leading CSU to file the instant motion to quash the Subpoena. CSU also requests an attendant award of attorney’s fees and costs.

I. Request for Judicial Notice

In support of its motion, CSU requests judicial notice of the memoranda of its Chancellors Charles B. Reed and Timothy P. White regarding Executive Orders 1096 and 1058. Public CSU documents, such as these, are proper subjects of judicial notice pursuant to Evidence Code section 452, subdivision (h), which authorizes courts to judicially notice “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (See Ticer v. Young (N.D. Cal., Sept. 9, 2016, No. 16-CV-02198-KAW) 2016 WL 4719272, at *5.) In addition, the documents are relevant to issues raised herein. (See People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 (“Lockyer”) [any matter to be judicially noticed must be relevant to a material issue].) Accordingly, the request is GRANTED.

II. Merits of the Motion

This motion is made pursuant to Code of Civil Procedure section 1987.1, which authorizes a party or witness to bring a motion to “quash a subpoena entirely, modify it, or direct compliance with it upon such terms or conditions as the court shall declare.” CSU insists the Subpoena should be quashed as it seeks information protected by the attorney-client privilege and attorney work product doctrine.

The attorney-client privilege is “codified in Evidence Code section 954, [which] provides in pertinent part: ‘. . . the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer[.]” (Southern Cal. Gas Co. v. Public Utilities Com. (1990) 50 Cal.3d 31, 37, internal citations omitted.) “Evidence Code section 952 defines the term ‘confidential communication between client and lawyer’ as ‘information transmitted between a client and his lawyer in the course of that relationship and in confidence 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 or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.’” (Mitchell v. Superior Court (1984) 37 Cal.3d 591, 600, citations omitted.)

The attorney work product doctrine is codified in Code of Civil Procedure section 2018.030 and precludes the discovery of a writing reflecting an attorney’s impressions, conclusions, opinions, theories, or legal research. It also prevents the discovery of other attorney work product not specifically identified in section 2018.030 unless the denial of discovery will unfairly prejudice the party seeking the discovery. (Code Civ. Proc., § 2018.030, subd. (b).) The doctrine evolved from the protection against invading the privacy of an attorney’s preparation. (Coito v. Superior Court (2012) 54 Cal.4th 480, 490.) A consequence of allowing the opposing party to obtain attorney work product would be that “[a]n attorney’s thoughts, heretofore inviolate, would not be his own.” (City of Long Beach v. Superior Court (1976) 64 Cal.App.3d 65, 72, citations omitted.)

Relative to both grounds, the party claiming the privilege has the burden of proving the essential elements, including the existence of an attorney-client relationship. (DP Pham, LLC v. Cheadle (2016) 246 Cal.App.4th 653, 665; BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1252.) CSU relies on City of Petaluma v. Superior Court (2016) 248 Cal.App.4th 1023 (“City of Petaluma”) in support of the proposition it has an attorney-client relationship with Paris.

In City of Petaluma, the plaintiff filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) alleging she was sexually harassed and retaliated against while employed by the defendant city. (City of Petaluma, supra, 248 Cal.App.4th at p. 1028.) The defendant considered the EEOC complaint to be an action taken in anticipation of litigation and hired outside counsel to investigate the charge. (Id. at p. 1029.) The agreement between the defendant and counsel stated the investigation was to be impartial and subject to the attorney-client privilege. (Ibid.) It further indicated the attorney would not render legal advice as to what action to take as a result of the investigation. (Ibid.) After the investigation concluded, the plaintiff initiated an action against the defendant for violations of the Fair Employment and Housing Act. (Id. at p. 1030.) Thereafter, the plaintiff served discovery upon the defendant seeking the production of the pre-litigation investigatory report, to which the defendant objected on the grounds of the attorney-client privilege and attorney work product doctrine. (Ibid.) The plaintiff moved to compel production of the documents relating to the investigation, which the trial court granted. (Ibid.)

The Court of Appeal reversed, finding the outside counsel and defendant were engaged in an attorney-client relationship. (City of Petaluma, supra, 248 Cal.App.4th at pp. 1032-35.) The court first set forth the definition of a client as a person consulting a lawyer for the purpose of retaining him or her, or securing legal service or advice. (Id. at p. 1032.) The court then stated that, even though counsel was not to provide legal advice and was a neutral investigator, the investigation constituted a legal service as counsel used her expertise in employment law to discover pertinent facts and evaluate the evidence. (Id. at pp. 1034-35.)

Similarly, here, CSU engaged outside counsel to conduct a neutral investigation relating to a harassment claim. The engagement agreement between CSU and Paris explicitly provides that the parties are in an attorney-client relationship and she was engaged in anticipation of litigation. (Silver Decl., ¶¶ 5-6.) As such, under City of Petaluma, CSU has demonstrated the existence of an attorney-client relationship. Plaintiff’s four arguments in opposition do not support a contrary conclusion.

To fully understand Plaintiff’s arguments in opposition, it is necessary to first identify the full range of the complaint she made to CSU and CSU’s procedures for conducting certain internal investigations. It is undisputed Plaintiff complained to CSU and/or SJSU about purported sexual harassment as well as the subject retaliation claim. It is also undisputed CSU hired Paris to investigate both allegations. To be clear, the purported sexual harassment is not the subject of this lawsuit.

To comply with relevant law, CSU adopted Executive Order 1096 (“EO 1096”), which sets forth its procedures for investigating allegations of sexual harassment. (Puchalt Decl., Exh. 1.) When an investigation occurs pursuant to EO 1096, CSU must provide the complainant a copy of the final report if one is requested. (Ibid.) CSU also adopted Executive Order 1058 (“EO 1058”), which fulfills the requirements set forth in Government Code section 8547.12, subdivision (a) regarding procedures for investigating whistleblower complaints. (Id. at Exh. 4.) EO 1058 provides that when there is such a complaint, CSU’s campus administrator may investigate the claim or appoint a third party to do so. (Ibid.) Unlike EO 1096, EO 1058 does not contain a provision requiring CSU to provide the complainant a copy of the final report. In response to Plaintiff’s complaint to CSU, Paris prepared two reports: one relating to the EO 1096 investigation and another regarding the EO 1058 investigation.

Turning to Plaintiff’s arguments, she first contends City of Petaluma is distinguishable because she was promised a copy of the investigatory report and Paris’ retention was pursuant to statute. Plaintiff insists that, in contrast, the defendant in City of Petaluma did not promise to provide a copy of the report and counsel was not hired pursuant to statute. This does not render City of Petaluma inapplicable. Neither Paris nor CSU promised Plaintiff a copy of the subject report. As stated above, the investigations were based on both EO 1096 and EO 1058, and culminated in two reports, one made pursuant to each executive order. The letter SJSU sent Plaintiff informing her of her rights to seek a copy of the report explicitly stated she may request a copy of the EO 1096 report but would not receive a copy of the EO 1058 report. (Tappe Decl., Exh. 3.) Thus, Plaintiff was not promised a copy of the EO 1058 report, which is the report at issue here. In addition, though it is true that EO 1096 and 1058 were established to comply with statutes (see Puchalt Decl., Exhs. 1 & 4), it is unclear why that would dictate the existence of an attorney-client relationship and Plaintiff does not explain that point. (See People v. Dougherty (1982) 138 Cal.App.3d 278, 282 [“‘Where a point is merely asserted by counsel without any argument of or authority for its proposition, it is deemed to be without foundation and requires no discussion.’ [Citation.]”].) Plaintiff therefore fails to distinguish City of Petaluma.

Second, Plaintiff argues an attorney-client relationship does not exist because the dominant purpose of the relationship was to obtain a neutral investigatory report. Plaintiff insists the role of a neutral investigator is inconsistent with the purpose of an attorney. Plaintiff fails to substantiate this argument as she provides absolutely no authority in support. (See People v. Dougherty, supra, 138 Cal.App.3d at p. 282.) Moreover, that argument is contrary to the holding in City of Petaluma where the attorney-client privilege applied to outside counsel charged with conducting an impartial investigation. (See City of Petaluma, supra, 248 Cal.App.4th at p. 1029.) As such, the fact Paris was retained as a neutral investigator does not preclude the existence of an attorney-client relationship.

Next, Plaintiff contends CSU’s previous failure to assert the privileges is inconsistent with the proposition that any attorney-client relationship exists. Plaintiff maintains her counsel made “repeated requests for assurances that he would receive investigation notes and a report related to the investigation, but Ms. Paris never asserted the attorney client or work product privilege or informed [him] that [her firm] or CSU would be asserting such a privilege.” (Opp., p. 7:23-26.) Plaintiff essentially contends there is no attorney-client relationship because Paris did not explicitly state there was one when opposing counsel asked about the investigation. To be clear, Plaintiff is not stating previous discovery was propounded and Paris failed to assert any privilege. Rather, she is arguing Paris never explicitly stated information would be withheld when the parties discussed the report. Plaintiff’s argument is unsubstantiated as she provides no legal authority supporting her proposition. (See People v. Dougherty, supra, 138 Cal.App.3d at p. 282.) Indeed, the Court is unaware of any authority suggesting an attorney must explicitly state an attorney-client relationship exists even before any formal discovery is propounded to be able to later assert it exists. As such, this argument does not support her position that an attorney-client relationship does not exist.

Last, though unclear, it appears Plaintiff contends there is not an attorney-client relationship because the law firm that employs Paris conducted another whistleblower investigation in the past for the Regents of California and the firm did not assert the attorney-client privilege in connection with that investigation. Plaintiff provides no authority supporting her contention that if an attorney does not assert privilege in connection with an entirely unrelated investigation with another client, the attorney cannot assert privilege in a different investigation relating to the same general topic. (See People v. Dougherty, supra, 138 Cal.App.3d at p. 282.) Nor is the Court aware of such authority.

In sum, CSU established the existence of an attorney-client relationship and Plaintiff failed to successfully advance any argument supporting a contrary conclusion. As CSU demonstrated the existence of an attorney-client relationship, it must next prove the subject documents were authored and communications were made in furtherance of that relationship. (See City of Petaluma, supra, 248 Cal.App.4th at p. 1032.)

As persuasively argued by CSU, the Subpoena seeks documents protected by the attorney-client privilege and/or attorney work product doctrine. As articulated above, the Subpoena seeks Plaintiff’s case file, including interview notes, all drafts of the investigatory report, all e-mails between Paris and SJSU and/or CSU relating to Plaintiff, documents provided to Paris in connection with witness interviews, and all invoices and payments relating to CSU’s payments to Paris relating to this investigation. (Naran Decl., Exh. B.) These documents are all protected by the attorney-client privilege or attorney work product doctrine. (See Los Angeles County Board of Supervisors v. Superior Court (2016) 2 Cal.5th 282, 297 [attorney-client privilege protects invoices]; Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214, 217 [interview notes are protected by attorney work product doctrine].) Because CSU establishes the subject documents are covered by the attorney-client privilege and/or attorney work product doctrine, the burden shifts to Plaintiff to prove the subject documents are not confidential or that the privileges do not apply for other reasons. (City of Petaluma, supra, 248 Cal.App.4th at p. 1032.)

To that point, Plaintiff contends CSU waived both privileges because it previously produced the EO 1096 report. According to Plaintiff, the sexual harassment and retaliation investigations were conducted at the same time by the same attorney and resulted from the same complaint. Plaintiff therefore suggests the two reports should be considered the same communication and/or document for the purpose of analyzing the application of the attorney-client privilege and attorney work product doctrine.

Pursuant to Evidence Code section 912, subdivision (a), the attorney-client privilege is waived “if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone.” “Waiver of work product protection, though not expressly defined by statute, is generally found under the same set of circumstances as waiver of the attorney-client privilege—by failing to assert the protection, by tendering certain issues, [] by conduct inconsistent with claiming the protection[,]” and by voluntarily disclosing the writing “to a person other than the client who has no interest in maintaining the confidentiality of the contents of the writing.” (McKesson HBOC, Inc. v. Superior Court (2004) 115 Cal.App.4th 1229, 1239.)

Plaintiff’s suggestion that the EO 1096 and 1058 reports should be considered the same communication and/or document is erroneous because they are clearly different reports resulting from separate investigations. Although Plaintiff is correct that the investigations commenced as a result of a single complaint, that does not mean a single investigation occurred and a single report was published. The complaint had two distinct components such that the investigation pertained to two different topics. The EO 1058 investigation related to retaliation for reporting the alleged misuse of funds; in contrast, the EO 1096 investigation concerned Lanning’s purported sexual harassment of Plaintiff. Consequently, the investigations are not identical and there is no support for the proposition that these separate reports should be considered the same communication and/or document for the purpose of a waiver analysis.

Because the EO 1058 and EO 1096 reports are distinct and cannot be considered the same communication and/or document, Plaintiff’s argument that providing one waives privilege as to the other fails. The privileges are waived only when a significant part of the subject communication is disseminated (Southern Cal. Gas Co. v. Public Utilities Com., supra, 50 Cal.3d at p. 46); however, the EO 1058 report and related documents were not provided to Plaintiff. Thus, no part of the subject communication and/or document was disseminated. As such, CSU did not waive its privilege as to the 1058 report. (See Rodriguez v. Superior Court (1993) 14 Cal.App.4th 1260, 1270 [“Waiver of privilege as to one aspect of a protected relationship does not necessarily waive the privilege as to other aspects of the privileged relationship.”].)

Accordingly, CSU’s motion to quash is GRANTED.

III. Award of Attorney’s Fees and Costs

CSU requests an award of attorney’s fees and costs pursuant to Code of Civil Procedure section 1987.2, which provides that a court making an order on a motion under section 1987.1 “may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification.”

Here, CSU prevailed in bringing its motion and Plaintiff did not act with substantial justification in opposing it. The Court will therefore grant CSU’s request for an award of fees and costs.
CSU requests an award in the amount of $7,820.00, representing 28 hours of attorney time at $275.00 an hour and a $120.00 filing fee for this motion as well as an accompanying motion to seal. (Naran Decl., ¶ 13.) This request is problematic because it includes 8 hours of anticipated time for preparing a reply and preparing for and appearing at oral argument. (Ibid.) The Court does not award fees for expenses not yet incurred. (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551, 1564.) Further, with respect to the $60.00 filing fee for the accompanying motion to seal, recovery thereof will not be permitted since that motion has been denied and the Rules of Court do not provide any right to monetary sanctions for motions to seal. Last, the Court does not find 20 hours to be a reasonable amount of time to have spent drafting this motion given its relatively narrow scope. The Court finds 10 hours to be more reasonable. Accordingly, CSU’s request for monetary sanctions is GRANTED IN PART in the amount of $2,810.00 (10 hours x $275 + $60.00). Plaintiff shall pay this award to CSU’s counsel within 20 calendar days of written notice of entry of this Order signed by the Court.

The Court shall prepare the Order.