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Holmes v. Petrovich Development Co., LLC

Court of Appeal of California, Third Appellate District

January 13, 2011, Filed

C059133

Opinion

 [**882]  SCOTLAND, J.2—Plaintiff Gina M. Holmes appeals from the judgment entered in favor of defendants Petrovich Development Company, LLC, and Paul Petrovich in her lawsuit for sexual harassment, retaliation, wrongful termination, violation of the right to privacy, and intentional infliction of emotional distress. 3 She contends that the trial court erred in granting defendants' motion for summary adjudication with respect to the causes of action for discrimination, retaliation, and wrongful termination, and that the jury's verdict as to the remaining causes of action must be reversed due to evidentiary and instructional errors. We disagree and shall affirm the judgment.

Among other things, we conclude that e-mails sent by Holmes to her attorney regarding possible legal action against defendants did not constitute “ ‘confidential communication between client and lawyer’ ” within the meaning of Evidence Code section 952.  [**883] This is so because Holmes used a computer of defendant company to send the e-mails even though (1) she had been told of the company's policy that its computers were to be used only for company business and that employees were prohibited from using them to send or receive personal e-mail, (2) she had been warned that the company would monitor its computers for compliance with this company policy and thus might “inspect all files and messages … at any time,” and (3) she had been explicitly advised that employees using company computers to create or maintain personal information or messages “have no right of privacy with respect to that information or message.”

As we will explain, an attorney-client communication “does not lose its privileged character for the sole reason that it is communicated by electronic  [***3] means or because persons involved in the delivery, facilitation, or storage of electronic communication may have access to the content of the communication.” (Evid. Code, § 917, subd. (b).) However, the e-mails sent via company computer under the circumstances of this case were akin to consulting her lawyer in her employer's conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard by him. By using the company's computer to communicate with her lawyer, knowing the communications violated company computer policy and could be discovered by her employer due to company monitoring of e-mail usage, Holmes did not communicate “in confidence by a means which, so far as the client is aware,  [*1052]  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.” (Evid. Code, § 952.) Consequently, the communications were not privileged.

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191 Cal. App. 4th 1047 *; 119 Cal. Rptr. 3d 878 **; 2011 Cal. App. LEXIS 33 ***; 111 Fair Empl. Prac. Cas. (BNA) 424

GINA M. HOLMES, Plaintiff and Appellant, v. PETROVICH DEVELOPMENT COMPANY, LLC, et al., Defendants and Respondents.

Prior History:  [***1] APPEAL from a judgment of the Superior Court of Sacramento County, No. 05AS04356, Shelleyanne W. L. Chang, Judge.

Disposition: Affirmed.

CORE TERMS

e-mails, pregnancy, communications, harassment, trial court, attorney-client, conditions, cause of action, defendants', employees, monitored, forwarded, comments, messages, privacy, maternity leave, retaliation, hostile, summary adjudication, privileged, quit, pervasive, handbook, hostile work environment, emotional distress, sexual harassment, protective order, work environment, offensive, pregnant

Civil Procedure, Summary Judgment, Entitlement as Matter of Law, General Overview, Appeals, Summary Judgment Review, Standards of Review, Labor & Employment Law, Harassment, Sexual Harassment, Hostile Work Environment, Scope & Definitions, Sexual Harassment, Quid Pro Quo, Wrongful Termination, Constructive Discharge, Retaliation, Elements, Adverse Employment Actions, Appellate Briefs, Reviewability of Lower Court Decisions, Preservation for Review, Evidence, Privileges, Attorney-Client Privilege, Elements, Scope, Waiver