Wood v. Superior Court of San Diego Cnty.

46 Cal.App.5th 562

259 Cal.Rptr.3d 798

Christynne Lili Wrene WOOD, Petitioner,

v.The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent;

CFG Jamacha, LLC et al., Real Parties in Interest.

D076325

Court of Appeal, Fourth District, Division 1, California.

Filed March 13, 2020

As Modified April 8, 2020

ACLU Foundation of San Diego & Imperial Counties, David Loy, Oxnard, Melissa DeLeon; Nixon Peabody, Michael Lindsay, Seth D. Levy, Oxnard, Erin Holyoke, Oxnard; ACLU Foundation of Southern California, Amanda Goad and Aditi Fruitwala, for Petitioner.

No appearance for Respondent.

Liedle, Larson & Vail, Tamara G. Vail, San Diego, and Ryan G. Rupe, San Diego, for Real Parties in Interest CFG Jamacha, LLC and John Romeo.

Xavier Becerra, Attorney General, Michael L. Newman, Assistant Attorney General, Cherokee DM Melton and Anthony V. Seferian, Deputy Attorneys General, for Real Party in Interest California Department of Fair Employment and Housing.

GUERRERO, J.

Petitioner Christynne Lili Wrene Wood contacted the California Department of Fair Employment and Housing (DFEH) to report alleged gender discrimination by her Crunch fitness club, which is owned and operated by CFG Jamacha, LLC and John Romeo (collectively, Crunch). After an investigation, DFEH filed a lawsuit against Crunch alleging violations of the Unruh Civil Rights Act ( Civ. Code, § 51 ) for unlawful discrimination on the basis of gender identity or expression. Wood intervened as a plaintiff in the lawsuit. During discovery, Crunch requested that Wood produce all communications with DFEH relating to Crunch. As relevant here, Wood refused to produce one such communication, a prelitigation email she sent to DFEH lawyers regarding her DFEH complaint, on the grounds of attorney-client privilege. Crunch moved to compel production of the email, and the trial court granted the motion.

Wood filed a petition for writ of mandate in this court. She argued that the trial court erred by overruling her objection based on the attorney-client privilege and compelling production of the email. We summarily denied the petition. The California Supreme Court granted review and transferred the matter back to this court with directions "to vacate [our] order denying mandate and to issue an order directing the superior court to show cause why the relief sought in the petition should not be granted." We issued the order to show cause as directed, and these proceedings followed.

We conclude that Wood has not shown the attorney-client privilege applies to the email at issue. A prima facie showing of privilege requires that the communication be made in the course of an attorney-client relationship. (See Evid. Code, § 952 ; Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733, 101 Cal.Rptr.3d 758, 219 P.3d 736 ( Costco ).) DFEH lawyers have an attorney-client relationship with the State of California. Wood has not shown DFEH lawyers formed an attorney-client relationship with her. As such, any communications between Wood and DFEH lawyers were not made in the course of an attorney-client relationship and were not privileged. We therefore deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

According to DFEH's operative complaint, Wood is a member of a Crunch fitness club in El Cajon, California. She is a transgender woman. In 2016, she began physically transitioning from male to female. After she was harassed by another member in the Crunch men's locker room, Wood provided Crunch with medical verification of her transition and requested use of the women's locker room. Crunch declined Wood's request but told her she would be allowed to use Crunch's more exclusive "platinum" men's locker room. Wood reluctantly agreed and continued patronizing the gym. The next year, Wood legally changed her name and gender marker to female. She repeated her request to Crunch that she be allowed to use the women's locker room. Crunch again declined. It told Wood that she would need to complete " ‘sex-reassignment surgery ’ " in order to use the women's locker room. However, after Wood was again harassed by another member, this time in the platinum men's locker room, Crunch consented to Wood's use of the women's locker room.

Based on these allegations, DFEH alleged a cause of action against Crunch for unlawful discrimination based on gender identity and expression. ( Civ. Code, § 51, subds. (b), (e)(5).) On behalf of Wood, DFEH sought statutory damages of $4,000 for each time Wood was denied access to the women's locker room. (Id. , § 52, subd. (a).) In the alternative, DFEH sought actual damages for Wood's out-of-pocket expenses and emotional distress.

DFEH also sought injunctive relief, including that Crunch (1) cease and desist discrimination against Wood and all other current and prospective members based on gender identity, gender expression, or any other protected characteristic; (2) provide Wood and all other current and prospective members access to the locker room and restroom facilities that accord with their gender identity; (3) not retaliate against Wood for her complaint of discrimination; (4) post a copy of the court's judgment in an area visible to all current and prospective members; (5) provide recurring antidiscrimination training of at least two hours to all owners, managers, and employees at Crunch, with special emphasis on sex and gender discrimination; (6) post a copy of DFEH's "Unruh Civil Rights Act Fact Sheet" in an area visible to all current and prospective members; (7) modify all Crunch nondiscrimination policies to comply with applicable California and federal law, including an explicit statement that current and prospective members shall have access to locker room and restroom facilities that accord with their gender identity; (8) develop, implement, and distribute a written policy and procedures for handling and documenting member complaints and Crunch's responses; and (9) provide DFEH with recurring reports certifying Crunch's compliance. DFEH demanded its reasonable attorney fees and costs.

Wood, represented by her own counsel, filed a complaint in intervention. ( Gov. Code, § 12965, subd. (a).) Based on a similar set of factual allegations, Wood alleged causes of action against Crunch for unlawful discrimination, negligence, and negligent hiring and supervision. In addition to the relief requested by DFEH, Wood requested punitive damages and her own reasonable attorney fees and costs.

As noted, during discovery, Crunch requested that Wood produce all communications with DFEH relating to Crunch. Wood objected to the request based on, among other grounds, the attorney-client privilege. Wood eventually produced certain documents and withheld others, including the email at issue in this proceeding. In a privilege log, Wood described the email as an "Email from Christynne Wood to Nelson Chan and Jeanette Hawn regarding Ms. Wood's DFEH complaint." She asserted objections based on the attorney-client privilege, the official information privilege, and the deliberative process privilege. The email was sent in June 2017, during DFEH's investigation, after Wood had filed an administrative complaint with DFEH, but before DFEH filed suit against Crunch. Chan and Hawn are DFEH lawyers.

After the parties were unable to resolve their dispute informally, Crunch filed a motion to compel production of documents, including the email at issue. Crunch contended that the documents were relevant, discoverable, and nonprivileged. Crunch disputed that an attorney-client relationship could exist between the DFEH and Wood, given DFEH's governmental function. Among other things, Crunch cited DFEH's letters to Crunch during its investigation of Wood's complaint, where it stated that " ‘DFEH serves as a neutral fact-finder and represents the state of California rather than the complaining party.’ " Crunch asserted these letters were consistent with DFEH's public statements, which state, " ‘The DFEH will conduct an impartial investigation. [DFEH] is not an advocate for either the person complaining or the person complained against. [DFEH] represents the state.’ " Crunch argued that DFEH may act only on behalf of the state and, similar to a criminal prosecutor, it could not compromise its impartiality by undertaking to represent a specific individual. Crunch concluded that Wood could not show that her communications with DFEH were for the purpose of securing legal advice or retaining DFEH lawyers as her counsel.

Crunch further contended that the deliberative process and official information privileges did not apply. The deliberative process privilege was inapplicable in litigation unrelated to a review of agency action. The official information privilege was only a qualified privilege, and the necessity for preserving the confidentiality of the communication did not outweigh the necessity for disclosure in the interest of justice.

Wood opposed the motion. She claimed the attorney-client privilege applied because "at all relevant times, the DFEH was acting in a legal capacity and Ms. Wood believed the DFEH represented her." In a declaration submitted with her opposition, Wood stated, "Throughout communications with the DFEH, I thought the DFEH was helping me with a legal dispute and believed that all conversations I had with DFEH lawyers were confidential. During the times I spoke with DFEH lawyers and DFEH employees, I thought that lawyers had to maintain the confidences of people they were speaking to." In addition, in a deposition, Wood asserted that a DFEH lawyer represented her, along with her retained counsel.

Wood relied on federal cases finding an attorney-client privilege between the U.S. Equal Employment Opportunity Commission (EEOC) and complaining parties who claimed to seek legal advice from the EEOC. She distinguished the situation of criminal prosecutors because "prosecutors do not file cases on behalf of real parties in interest[ ] and do not seek victim-specific relief."

Wood also contended...