Gonzalez v. Superior Court

• Decision Date: 11 April 1995
• Docket Number: No. B086213,B086213
• Citation: 39 Cal.Rptr.2d 896,33 Cal.App.4th 1539
• Court: California Court of Appeals Court of Appeals
• Parties: , 67 Fair Empl.Prac.Cas. (BNA) 694 Kimberly GONZALEZ, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; CITY OF SAN FERNANDO et al., Real Parties in Interest.

Page 896

39 Cal.Rptr.2d 896

33 Cal.App.4th 1539, 67 Fair Empl.Prac.Cas. (BNA) 694

Kimberly GONZALEZ, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent CITY OF SAN FERNANDO et al., Real Parties in Interest.

No. B086213.

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

April 11, 1995.

ACLU Foundation of Southern California, Carol A. Sobel, Los Angeles, Paul L. Hoffman, Santa Monica, Sharon M. Robinson and John R. White, Encino, for petitioner.

Ochoa & Sillas and Jesse M. Jauregui, Los Angeles, for real parties in interest.

MIRIAM A. VOGEL, Associate Justice.

We are called upon in this case to balance competing interests. On one side of the scale is a plaintiff's right to pursue a sexual harassment lawsuit uninhibited by concerns that her former employer will retaliate against other employees who are willing to help prove her case. On the other side is the employer's right to discover the identity of a presently unnamed person who stole evidence related to the plaintiff's lawsuit from the employer's files and gave it to the plaintiff. We hold that the plaintiff, to tip the scales in her favor, must present some evidence (not mere speculation) that her fear of retaliation is justified. In this case, the plaintiff's failure to present any proof at all compels a decision in favor of the employer. ¹

FACTS

Kimberly Gonzalez worked for the City of San Fernando Police Department as a radio dispatcher. After she left, she sued the City, its chief of police and others employed by its police department, alleging sexual harassment.

According to the complaint, the "harassment arose out of the display ... in the men's locker room of the police station of photographs of a semi-nude woman...." The woman in the photographs bore a "striking resemblance to" Gonzalez and an officer asked Gonzalez why photographs of her were hanging in the men's locker room. Several days later, other officers commented to Gonzalez about the pictures and about the woman's resemblance to her.

Gonzalez asked the officers to get the pictures for her. They declined but a few days later she was told the photographs had been removed. "Some time after the photographs were taken down, [Gonzalez] received an envelope containing the two pictures." Gonzalez then filed a complaint with the Department of Fair Employment and Housing and notified her employer. No response was forthcoming, she alleges--no investigation was conducted and no one was disciplined. Instead, she was questioned about the identity of the person who had given her the photographs and complaints were lodged about her refusal to provide the requested information. Ultimately, she was given "an incomplete and adverse performance evaluation" because she refused to identify the person who gave her the photographs. ² When Gonzalez challenged the evaluation she was again questioned about the identity of her assistant and, again, threatened with disciplinary action if she did not reveal his identity. "Ultimately, she was compelled to leave her job on a stress disability when the department began to construct an effort to terminate and/or discipline her for failure to do her job properly."

Based on these allegations, Gonzalez sought general, special and punitive damages for sexual harassment in violation of various constitutional and statutory provisions and for the intentional infliction of emotional distress. Defendants answered the complaint and thereafter served Gonzalez with interrogatories which asked, among other things, for the identity of the assistant who handed her " 'an envelope containing the two photographs' as alleged" in her complaint. Gonzalez objected and refused to answer this interrogatory on the grounds that it sought "information which is privileged under the California Constitution, Article I, sec[tion] 1 (privacy), that the disclosure of such information would be contrary to the public policy of this state in that it would lead to retaliation for the disclosure of unlawful discrimination and that the information is not likely to lead to the discovery [of] relevant evidence, is cumulative and not necessary to the resolution of this case."

Defendants moved to compel an answer, explaining that the interrogatory properly sought the identity of a person who had knowledge of the facts giving rise to Gonzalez's claims and that Gonzalez's apparent concern that the other person might "be retaliated against" was pure speculation. Gonzalez opposed the motion and asked the trial court to protect the identity of her assistant for the same reasons stated in her objection to the interrogatory. In support of her opposition, Gonzalez submitted a memorandum (which she had obtained through her own discovery efforts) from the Patrol Commander to the Chief of Police (the contents of which are undisputed). As pertinent, the memo states:

"On Monday, January 18, 1993, Desk Officer Kimberly Gonzalez was given a direct order by myself to answer a question relevant to an investigation concerning a theft that had occurred from a file cabinet assigned to Sergeant David Harvey.... At the time Gonzalez did not want to answer the question and asked for time to seek legal assistance before answering the question. I gave Gonzalez until ... today [January 22] to respond to the question or be subject to disciplinary action for failing to obey an order.

"[Today,] Gonzalez came into my office and [said] she wanted to tape record the conversation. While she was getting a tape recorder, I also got a tape recorder and recorded the conversation. [p] ... I summarized what had led to this point, and again told her that I was giving her an order to answer the question, 'Who took the photographs from Sergeant Dave Harvey's file cabinet and gave these photographs to you?'

"Gonzalez replied, 'The answer's the same. I'm not going to tell you who gave them to me.' ...

"I asked her if she understood that she was refusing to obey an order, and she said, 'I understand perfectly.' ...

"CONCLUSION

"In the course of [a] conversation with ... Gonzalez ... I became aware that she had photographs that had been taken from the file cabinet assigned to Sergeant David Harvey in the Watch Commander's office; further, that Gonzalez knew who had taken the photographs from the file cabinet and who gave the photographs to her....

"The sergeants assigned to the Patrol Division share a common office, the Watch Commander's Office, with each sergeant having a file cabinet assigned for the purpose of maintaining their correspondence necessary to perform their job. In this instance, a supervisor had gone into the file cabinet of another supervisor and, in effect, stole evidence.[ ³] Not only did a theft occur, but the sergeant violated a basic trust that must exist among the sergeants that share the office. This is intolerable behavior. Gonzalez has direct knowledge of this act.

"San Fernando Police Department Manual of Policies and Procedures Section 10020.35, Compliance with Lawful Orders, states, [p] The Department has [a] clearly defined hierarchy of authority. An officer must not question a superior's command. Such obedience is necessary for the safe and expeditious performance of law enforcement operations. The most desirable methods of obtaining compliance are recognition, reward, and positive encouragement; however, discipline may be imposed where orders, commands or directives are disregarded.

"Because she failed to obey an order, she is in violation of San Fernando Manual of Policies and Procedures Section 2-430.25, Legitimate Reasons for Disciplinary Action, subsection b) Failure to obey any order or directive, and Section 2-430.25, subsection gg) Failure to comply with all rules and regulations, general and specific orders, policies and procedures of the Department, written or verbal orders of a superior.

"RECOMMENDATION

"That Desk Officer Kimberly Gonzalez be disciplined for violation of section 2-430.25, subsections b) and gg)."

Gonzalez's opposition papers were not, however, supported by a declaration from her or from her assistant or anyone else (other than her attorney, whose declaration did no more than authenticate the memorandum quoted above) and there is no explanation for the basis of her concern about retaliation against her assistant if his identity is disclosed.

The trial court granted Defendants' motion and ordered Gonzalez to answer the interrogatory. These writ proceedings followed.

DISCUSSION

Gonzalez claims she should not be required to disclose the identity of her assistant because his privacy as a "whistleblower" must be protected and because California's public policy against sexual harassment in the workplace overrides Defendants' right to discover the informant's identity. For several reasons, we disagree. ⁴

A.

"Unless otherwise limited by order of the court in accordance with [the discovery statutes], any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action ... if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter...." (Code Civ.Proc., § 2017, subd. (a); see also Smith v. Superior Court (1961) 189 Cal.App.2d 6, 11-12, 11 Cal.Rptr. 165.)

B.

We begin, therefore, with relevancy. For discovery purposes, information is relevant if it "might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement...." (Weil & Brown, Cal.Practice Guide: Civil Procedure Before Trial (Rutter 1994) Discovery, p 8:66.1, p. 8C-1.) Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible...