Case Number: MC025485 Hearing Date: October 30, 2018 Dept: A15

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTH DISTRICT

)

TIMOTHY STURM; ) Case Number MC025485

)

Plaintiff, ) ORDER AFTER HEARING

)

v. )

) Date of Hearing:

COUNTY OF LOS ANGELES ) October 30, 2018

DEPARTMENT OF PROBATION; ) Dept. A-15

) Judge Randolph A. Rogers

Defendant. )

____________________________________)

Non-Party Michael Gennaco’s motion to quash his deposition by Plaintiff came on for hearing on October 30, 2018. Plaintiff Timothy Sturm appeared in pro per. Defendant County of Los Angeles Department of Probation appeared through its counsel of record, ______________________. Non-Party Michael Gennaco through his counsel, ______________________.

The Court, having received and reviewed the pleadings of record and evidence submitted and having considered argument of counsel, it is hereby ORDERED:

The motion to quash is GRANTED.

SO ORDERED this the 30th day of October, 2018.

______________________

RANDOLPH A. ROGERS,

JUDGE

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTH DISTRICT

)

TIMOTHY STURM; ) Case Number MC025485

)

Plaintiff, ) STATEMENT OF DECISION

)

v. )

) Date of Hearing:

COUNTY OF LOS ANGELES ) October 30, 2018

DEPARTMENT OF PROBATION; ) Dept. A-15

) Judge Randolph A. Rogers

Defendant. )

____________________________________)

The Court bases the Order After Hearing of this date upon the following Statement of Decision:

The present case is a breach of contract and wrongful termination suit. Plaintiff Timothy Sturm (“Plaintiff”) was employed by Defendant County of Los Angeles Department of Probation (“County”), as a juvenile probation officer. On May 01, 2007, a disturbance erupted where Plaintiff was in charge. Plaintiff alleges that help was slow to arrive and reluctant to render assistance for fear of violating departmental policies. The incident lasted approximately 30 minutes. The incident resulted in County conducting an investigation that concluded Plaintiff had employed excessive force against a juvenile ward of the court. A parallel investigation by the Sheriff’s Department found Plaintiff to have acted appropriately. The probation department investigation is alleged to have been doctored to cover up other deficiencies in County response. Plaintiff sought further investigation into the incident by the Civil Service Commission to overturn County’s investigation and imposition of disciplinary sanction.

A second incident occurred on April 07, 2009, when another ward accused Plaintiff of using excessive force. No disciplinary action resulted. A re-investigation of the 2007 incident was ordered by the Civil Service Commission in January of 2010. No investigation commenced, but in April of 2010, Plaintiff was discharged. Plaintiff appealed the decision.

During the course of the appeal, Plaintiff was represented by an attorney, John Duwors, to whom several representations were allegedly made by County’s attorney. As a result of the representations, Plaintiff agreed to a settlement on July 11, 2011, and dismissed his appeal. In February 2013, Plaintiff received a check for $1,930.16 for unused vacation pay, and on January 14, 2014, Plaintiff received a check for $18,806.36 representing wages for June 3, 2010 through October 12, 2010. A purported letter of commendation, a sign-off memorandum, and retirement contributions pursuant to the settlement agreement occurred between July, 2015 and November, 2015. Plaintiff was issued a check for $6,425.04 as back payment for retirement benefits. However, Plaintiff contends that the settlement agreement remains unfulfilled as to pay and retirement benefits for the period between July 12 and September 30, 2011; issuance of an accurate and appropriate letter of commendation; and issuance of an appropriate sign-off memorandum relating to requests for backup.

Plaintiff filed suit on May 22, 2015, alleging causes of action for breach of contract, intentional misrepresentation, negligent misrepresentation, fraud in the inducement, declaratory relief, specific performance, wrongful termination, and waiting time penalties. A First Amended Complaint (“FAC”) was filed on September 23, 2015, alleging the same causes of action but removing “waiting time penalties” as a cause of action. A demurrer was filed and sustained by Order dated November 19, 2015, leading to Plaintiff’s Second Amended Complaint (“SAC”) on December 08, 2015, alleging causes of action for breach of written contract, intentional misrepresentation, negligent misrepresentation, fraud in the inducement, declaratory relief, specific performance, and wrongful termination. The intentional misrepresentation and negligent misrepresentation claims are alleged solely against Defendant Dennis Carroll (“Carroll”). The fraud in the inducement claim is alleged against County and Carroll. The remaining claims all relate solely to County. Carroll represented County during the civil service appeal hearings, and offered the settlement to Plaintiff.

On December 31, 2015, County filed its demurrer to the SAC. By Order dated February 18, 2016, the demurrer was sustained in part and overruled in part. Plaintiff thereafter filed his Third Amended Complaint (“TAC”) on March 10, 2016, alleging causes of action for breach of written contract, rescission, promissory fraud, declaratory relief, specific performance, and wrongful termination. County filed a demurrer to the TAC on April 14, 2016. County argued that Plaintiff’s claims were barred by the statute of limitations and Plaintiff’s failure to file timely government claims. County further argued that rescission and specific performance were improper under the facts pled, that Plaintiff waived any non-contractual claims, and that Plaintiff could not maintain a wrongful termination claim. By Order dated June 02, 2016, the demurrer was overruled.

The instant motion to quash the deposition of Non-Party Michael Gennaco (“Gennaco”) was filed by Gennaco on October 01, 2018, arguing that the deposition notice expressly requests that he answer questions related to his work as an attorney for the Office of Independent Review, which he cannot do pursuant to the attorney-client privilege and attorney work-product doctrine.

Plaintiff opposed the motion on September 27, 2018, arguing that the scope of the deposition is merely intended to cover the publicly available reports posted by the Office of Independent Review following the conclusion of their investigation, which cannot be considered as being covered under attorney-client privilege due to their public disclosure.

Discussion – Code Civ. Proc., § 1987.1 grants the trial court authority to quash a subpoena when necessary. Code Civ. Proc., § 1987.1 provides, “If a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”

Attorney-Client Privilege – “In general, when a party asserts the attorney-client privilege, that party has the burden of showing the preliminary facts necessary to support the privilege… After this burden is met, or where there is no dispute concerning the preliminary facts, the burden shifts to the party opposing the privilege to show either the claimed privilege does not apply, an exception exists, or there has been an express or implied waiver. [Citation].” Venture Law Group v. Superior Court (2004) 118 Cal.App.4th 96, 102.

Here, it appears to the Court that Gennaco has established his initial burden of showing that an attorney-client relationship existed that supports the assertion of privilege. Notably, Gennaco has provided his contract with the Office of Independent Review for the Court to review, which supports Gennaco’s assertion of privilege as to all of his work related to the investigations that are subject to the deposition subpoena. See Gennaco’s Ex. A.

With the burden shifted to Plaintiff, it appears to the Court that Plaintiff has not provided any information to dispute the preliminary facts establishing the attorney-client relationship, but that Plaintiff argues that this deposition should fall under an exception to attorney-client privilege. Specifically, Plaintiff argues that because the Office of Independent Review published the relevant reports in a public manner, the privilege associated with Gennaco’s work on the relevant investigations were waived pursuant to Evid. Code §1040(b)(2).

On review of the moving papers, it appears that Gennaco’s recitation of the law is correct, and that all information related to his legal work with the Office of Independent Review is protected under Evid. Code §§952 & 954. Moreover, Plaintiff has not cited any authority to persuade the Court that the Office of Independent Review’s subsequent publication of the conclusions of their investigations, which may or may not incorporate or reflect Gennaco’s work for the Office of Independent Review, gives rise to a right to intrude on the private confidences between an attorney and a client. Whereas, Gennaco has provided authority to support his continued assertion of attorney-client privilege in spite of his client’s publication of investigatory results. See S. Cal. Gas Co. v. Public Utils. Com (1990) 50 Cal. 3d 31, 49 (“The attorney-client privilege seeks to protect the conversations and communications between the attorney and client, not merely the conclusions developed by those conversations or the fact that such conversations occurred. Accordingly, we conclude that SoCalGas’s disclosure of the fact of its attorneys’ review of the Getty agreement and the conclusions arrived at by its attorneys to members of the commission was not an express waiver of the attorney-client privilege.”).

Accordingly, the Court concludes that Plaintiff has not establish sufficient basis for the Court to find that there is an exception to the attorney-client privilege under these circumstances, and will GRANT the motion to quash the deposition as a result.[1]

SO ORDERED this the 30th day of October, 2018.

_____________________________

RANDOLPH A. ROGERS, JUDGE

[1] The Court notes that Plaintiff may have more success at deposing a party knowledgeable about the non-privileged portions of the relevant investigations by requesting a deposition from the Office of Independent Review’s person most knowledgeable about the relevant topics pursuant to Code of Civ. Proc. §2025.230.