City of Petaluma v. Superior Court of Sonoma County
248 Cal. App. 4th 1023
| Cal. Ct. App. | 2016Background
- Andrea Waters, the City of Petaluma’s first female firefighter/paramedic, filed an EEOC charge alleging sexual harassment and retaliation and then resigned while on leave.
- City retained outside employment-law attorney Amy Oppenheimer to conduct an impartial investigation after receiving the EEOC notice; the retention letter created an attorney-client relationship but stated Oppenheimer would not advise the City what action to take.
- Oppenheimer prepared a confidential, attorney‑marked investigative report and provided it only to the City Attorney; communications were kept confidential.
- Waters sued the City under FEHA for harassment, discrimination, and retaliation. The City pled an avoidable‑consequences defense, alleging Waters failed to take advantage of preventive/corrective measures.
- Waters sought production of Oppenheimer’s report and related materials; the City asserted attorney‑client privilege and work product protection. The trial court compelled production, ruling no privilege applied and that the City waived any privilege by asserting the avoidable‑consequences defense.
- The Court of Appeal granted writ relief, holding the investigation was privileged and the post‑employment investigation was not waived by the avoidable‑consequences defense; remand ordered for item‑by‑item privilege determinations.
Issues
| Issue | Plaintiff's Argument (Waters) | Defendant's Argument (City) | Held |
|---|---|---|---|
| Whether a prelitigation factual investigation by outside counsel is protected by the attorney‑client privilege and work product doctrine when counsel is retained not to give advice about what action to take | Oppenheimer acted only as a factfinder; engagement disavowed legal advice, so communications and factual reports are not privileged | Outside counsel was retained to provide legal services (professional legal fact‑finding) in anticipation of litigation; privilege/work product apply even if advice about next steps was reserved to City Attorney | Privilege and work product apply. Dominant purpose was legal services; providing legal advice as to a course of action is not required for protection. |
| Whether asserting the avoidable‑consequences defense waives privilege in relation to a post‑employment investigation conducted after the employee resigned | By pleading avoidable consequences, the City placed the adequacy and results of its investigation at issue, waiving privilege | Avoidable‑consequences focuses on actions while employee was employed; a post‑employment investigation could not have been used by the employee or shown corrective measures while employed, so no waiver | No waiver as to the post‑employment investigation. Asserting the defense does not put a subsequently conducted investigation directly at issue. |
| Whether factual investigative materials (other than the report) withheld must be reviewed by the trial court | Waters: trial court should order disclosure of interview tapes/notes; any materials used to show what City would have done are relevant and not privileged | City: withheld materials are privileged or work product; must be evaluated item‑by‑item | Remand: trial court to review privilege log/materials and determine which items (other than the investigative report) are protected. |
| Scope of appellate review and immediate writ relief | Waters: defer to trial court’s factual findings; appeal adequate remedy | City: interlocutory writ appropriate because compelled disclosure of privileged material is irreparable; legal questions subject to independent review | Writ appropriate; independent review applied to legal conclusions where facts undisputed. |
Key Cases Cited
- Costco Wholesale Corp. v. Superior Court, 47 Cal.4th 725 (2009) (privilege scope and dominant‑purpose test; party bears initial burden to establish attorney‑client relationship)
- Wellpoint Health Networks, Inc. v. Superior Court, 59 Cal.App.4th 110 (1997) (attorney‑led employer investigations can qualify for privilege/work product; no blanket exclusion)
- Upjohn Co. v. United States, 449 U.S. 383 (1981) (fact‑gathering for legal advice is a core part of providing legal services)
- State Department of Health Services v. Superior Court, 31 Cal.4th 1026 (2003) (outline of avoidable‑consequences defense elements in FEHA cases)
- OXY Resources California LLC v. Superior Court, 115 Cal.App.4th 874 (2004) (interlocutory writ review proper where discovery order compels disclosure of privileged material)