46 Cal.App.5th 562
Cal. Ct. App.2020Background
- Petitioner Christynne Wood, a transgender gym member, filed an administrative complaint with the California Department of Fair Employment and Housing (DFEH) alleging Crunch (CFG Jamacha, LLC and John Romeo) discriminated by denying access to the women’s locker room.
- DFEH investigated and later sued Crunch under the Unruh Civil Rights Act; Wood intervened as a real party in interest and pursued parallel claims.
- During discovery, Crunch requested Wood's communications with DFEH; Wood withheld a June 2017 prelitigation email to DFEH attorneys, claiming attorney-client privilege (and other privileges).
- The trial court reviewed the email in camera, overruled Wood's privilege objection, and ordered production; Wood sought writ review after the trial court compelled disclosure.
- The Court of Appeal, on transfer from the Supreme Court, held Wood failed to carry her burden to show the email was a communication made in the course of an attorney-client relationship and denied the petition.
- The court emphasized that DFEH attorneys represent the state/DFEH not individual complainants; any government confidentiality claim must proceed under the official information privilege, not the attorney-client privilege.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an email from Wood to DFEH attorneys is protected by the attorney-client privilege | Wood: she sought legal advice from DFEH lawyers and reasonably believed they represented her; communications were confidential | Crunch/DFEH: DFEH acts as a neutral fact-finder and represents the state, not the complainant; no attorney-client relationship existed | Held: No privilege. Wood failed to show the communication was "in the course of" an attorney-client relationship because DFEH attorneys represent the Department, not Wood |
| Whether DFEH’s investigatory role and interest in complainant relief create a de facto or common-interest attorney-client relationship | Wood: DFEH pursues relief on complainants' behalf and public policy favors confidentiality to encourage reporting | Crunch: Convergence of interests does not create attorney-client status; public enforcement role precludes client relationship | Held: Convergence of interests insufficient; California requires a genuine attorney-client relationship for the privilege |
| Whether federal EEOC cases and the federal common-interest / joint-defense doctrines compel a different result | Wood/DFEH: federal decisions recognizing EEOC-complainant privileges or de facto relationships support privilege | Crunch: Federal doctrines are inapplicable; California law limits courts to statutory privileges | Held: Federal EEOC and common-interest precedents are unpersuasive; California does not recognize an implied joint-defense privilege that expands attorney-client protection |
| Role of the official information privilege as an alternative protection for DFEH communications | Wood: confidentiality is important and official information privilege should protect complainant communications with DFEH | Crunch: official information privilege is qualified and must be balanced against need for disclosure | Held: Court did not decide the issue on appeal; noted official information privilege is the appropriate governmental confidentiality mechanism and was not raised on appeal by Wood |
Key Cases Cited
- Costco Wholesale Corp. v. Superior Court, 47 Cal.4th 725 (Cal. 2009) (party asserting privilege bears burden to show preliminary facts establishing attorney-client relationship)
- People v. Gionis, 9 Cal.4th 1196 (Cal. 1995) (privilege requires communications in course of professional attorney-client relationship; mere discussion of legal matters is insufficient)
- Los Angeles County Bd. of Supervisors v. Superior Court, 2 Cal.5th 282 (Cal. 2016) (privilege tied to communications bearing relationship to legal consultation)
- Roberts v. City of Palmdale, 5 Cal.4th 363 (Cal. 1993) (public entities enjoy attorney-client privilege as to communications with their counsel)
- Shepherd v. Superior Court, 17 Cal.3d 107 (Cal. 1976) (prosecutor represents sovereign, not private victim; no attorney-client relationship exists between prosecutor and victim)
- People v. Superior Court (Greer), 19 Cal.3d 255 (Cal. 1977) (government attorneys must act impartially; prosecutorial role distinct from private counsel)
- Monterey County v. Cornejo, 53 Cal.3d 1271 (Cal. 1991) (statutory public enforcement actions benefit private parties but client remains the county)
- People ex rel. Clancy v. Superior Court, 39 Cal.3d 740 (Cal. 1985) (government counsel prosecuting public actions owe duties to the public interest)
- OXY Resources Cal. LLC v. Superior Court, 115 Cal.App.4th 874 (Cal. Ct. App. 2004) (California courts may not expand statutory privileges by judicial fiat; federal privilege law is not controlling)