American Airlines, Inc. v. Superior Court

• Decision Date: 29 December 2003
• Docket Number: No. B162513.,B162513.
• Court: California Court of Appeals Court of Appeals
• Parties: AMERICAN AIRLINES, INC., et al., Petitioners, v. SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent; Richard DiMarco, Real Party in Interest.

8 Cal.Rptr.3d 146

114 Cal.App.4th 881

AMERICAN AIRLINES, INC., et al., Petitioners, v. SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent Richard DiMarco, Real Party in Interest.

No. B162513.

Court of Appeal, Second District, Division 8.

December 29, 2003.

Rehearing Denied January 28, 2004.

Review Denied April 21, 2004.

Morgan, Lewis & Bockius, Susan G. Fillichio, Robert Jon Hendricks, Los Angeles, and

Dominick C. Capozzola for Petitioners.

No appearance for Respondent.

Schwartz, Steinsapir, Dohrmann & Sommers, Henry M. Willis and D. William Heine, Los Angeles, for Real Party in Interest.

Littler Mendelson and Garry G. Mathiason, San Francisco, for Amici Curiae AIRCON, Chamber of Commerce of the United States and LPA, Inc., on behalf of Petitioners.

Law Offices of Carroll & Scully, Inc., Donald C. Carroll and Charles P. Scully II, San Francisco, for Amicus Curiae, California Labor Federation, AFL-CIO, on behalf of Real Party in Interest.

RUBIN, J.

INTRODUCTION

During his wrongful employment termination lawsuit against American Airlines (American), Jawad Alamad indicated that his union representative had information that would support his claims of racial discrimination. American took the union representative's deposition, but he refused to answer relevant questions on the basis that his discussions with other employees were protected by a union representative-union member evidentiary privilege. Acknowledging the existence of such a privilege, the trial court denied American's motion to compel the union representative's deposition testimony. We hold neither California nor federal law recognizes such a privilege to prevent the disclosure of relevant information in a civil action. Accordingly, we direct the trial court to vacate its ruling and grant American's motion to compel.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Lawsuit.

Alamad, a former American aircraft mechanic, sued American and 11 of his supervisors for wrongful termination, harassment, and discrimination under the Fair Employment and Housing Act (FEHA). Alamad alleged, among other things, that throughout his employment he was continually discriminated against and harassed due to his middle-eastern heritage, that he was subjected to a hostile work environment, and that he was terminated in November 2000 in retaliation for complaining about the discrimination and harassment. American contends Alamad was terminated for dishonesty after he was caught working for another employer on that company's aircraft before the end of his work-shift for American.

2. The Discovery Dispute.

During discovery, Alamad identified persons having knowledge supporting his claims. One of those persons was Richard DiMarco, an American employee and Vice President of Local 564 of the Transport Workers Union of America, AFL-CIO (the Union). The Union, formed under the federal Railway Labor Act (RLA), represents American aircraft mechanics and other employees. DiMarco investigated the grievance Alamad filed with American after he was discharged. He also helped in the presentation of that grievance in arbitration proceedings held in accordance with the collective bargaining agreement between American and the Union.¹

During DiMarco's deposition in the civil action, he testified that between 1996 and 1999 he regularly heard American employees using racially derogatory names toward Alamad. He said he could identify those employees. DiMarco further testified that he knew of six shop stewards who had told him they were actively retaliated against by American. DiMarco also testified that some of the American mechanics who had previously provided declarations to American regarding Alamad were "coerced" into doing so. Those mechanics had testified in American's favor at the previous arbitration concerning Alamad's employment termination. That testimony generally supported American's position that Alamad was terminated for dishonesty and that he was not the subject of racial discrimination.

When DiMarco was pressed for details regarding the alleged coercion, the names of the employees who were allegedly coerced, the names of the employees who allegedly used derogatory slurs against Alamad, and the names of employees who claimed active retaliation, DiMarco repeatedly refused to testify. DiMarco further refused to answer whether he knew the allegedly coerced testimony was untruthful. DiMarco claimed the information was privileged.

American and three of the individually named supervisors moved to compel answers to deposition questions concerning the identity of the individuals who made the slurs and further details concerning the alleged coercion, including the names of the coerced employees. (See Code Civ. Proc., § 2025, subd. (o).) American argued DiMarco was a percipient witness whose answers would provide relevant, unprivileged information necessary to American's defense of Alamad's claims. In the alternative, American sought to exclude DiMarco's testimony at trial. Alamad's counsel opposed the motion, arguing DiMarco was justified in his refusal to answer questions because there is a qualified privilege for confidential communications between a union representative and union members concerning investigations into union matters and grievances.

DiMarco, represented by separate counsel, also opposed the motion. In his opposing declaration, DiMarco stated, "I have learned, from what employees told me in the course of my duties as a Union representative in dealing with employees' complaints concerning violation of the [Collective Bargaining Agreement with American], that some employees have used racially offensive terms to refer to Mr. Alamad. I have not identified any of those employees to management because that could subject those employees to discipline. [¶] I refused to answer questions at my deposition in which management asked for the names of these individuals, since revealing this information given to me by employees in the course of my duties as a Union representative would have put the Union and me in an untenable conflict of interest if management proceeded to discipline any of these employees for that conduct."

3. The Trial Court's Ruling.

The trial court denied American's motion to compel and stated, "I think it is a matter of first impression in California, and it's perhaps an issue best addressed to the Court of Appeal. But I agree, I think there would be, it should be a privilege as to communications between a union officer and members...."

American filed a petition for writ of mandate challenging the trial court's ruling. American urged us to vacate the trial court's ruling because neither California nor federal law recognizes a union member communication privilege. While we agreed the trial court erred in finding the privilege, we summarily denied the petition because American had not adequately demonstrated it would suffer irreparable harm if the discovery order was not immediately vacated. (See Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1272-1273, 258 Cal.Rptr. 66 [writ relief is not a foregone conclusion even if a trial court errs in its ruling]; Johnson v. Superior Court (2000) 80 Cal.App.4th 1050, 1060-1061, 95 Cal.Rptr.2d 864 [writ proceedings are disfavored for reviewing discovery rulings]; Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 169-170, 84 Cal.Rptr. 718, 465 P.2d 854 [writs will not issue merely because a discovery order is erroneous].)

The Supreme Court then granted American's petition for review and transferred the case back to us with directions that we vacate our summary denial and issue an order to show cause. We issued the order to cause, received further briefing, and heard oral argument. We conclude no union member privilege exists and direct the trial court to grant American's motion to compel.

DISCUSSION

1. Evidence Code Section 911.

Evidence Code section 911 provides, in relevant part: "Except as otherwise provided by statute: [¶] ... [¶] (b) No person has a privilege to refuse to disclose any matter or to refuse to produce any writing, object, or other thing." This section declares the California Legislature's determination that "evidentiary privileges shall be available only as defined by statute. [Citation.] Courts may not add to the statutory privileges except as required by state or federal constitutional law [citations], nor may courts imply unwritten exceptions to existing statutory privileges. [Citations.]" (Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 373, 20 Cal.Rptr.2d 330, 853 P.2d 496 (Roberts); see Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 656, 125 Cal.Rptr. 553, 542 P.2d 977 [privileges contained in Evidence Code are exclusive and courts are not free to create new privileges as matter of judicial policy unless constitutionally compelled]; Garstang v. Superior Court (1995) 39 Cal.App.4th 526, 532, 46 Cal.Rptr.2d 84 ["In California there is no privilege to refuse to disclose any matter, or to refuse to produce any writing, object, or thing, unless the privilege is created by statute"]; Cloud v. Superior Court (1996) 50 Cal.App.4th 1552, 1558-1559, 58 Cal.Rptr.2d 365 [unlike the federal courts, California courts are not free to create new privileges as a matter of judicial policy]; United States v. Nixon (1974) 418 U.S. 683, 710, 94 S.Ct. 3090, 41 L.Ed.2d 1039 [privileges are not lightly created nor expansively construed, for they are in derogation of the search for the truth].)

The burden of establishing that a particular matter is privileged is on the party asserting the privilege. (San Diego Professional Assn. v. Superior Court (1962) 58 Cal.2d 194, 199, 23 Cal.Rptr. 384, 373 P.2d 448; Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 398, 15 Cal.Rptr. 90, 364 P.2d 266 [party opposing disclosure on basis of privilege bears burden of establishing application of the privilege]; Gonzalez v. Superior...