Holmes v. Petrovich Dev. Co.

• Decision Date: 13 January 2011
• Docket Number: No. C059133.,C059133.
• Citation: Holmes v. Petrovich Dev. Co., 191 Cal.App.4th 1047, 119 Cal.Rptr.3d 878, 111 Fair Empl.Prac.Cas. 424, 11 Cal. Daily Op. Serv. 560 (Cal. App. 2011)
• Parties: Gina M. HOLMES, Plaintiff and Appellant, v. PETROVICH DEVELOPMENT COMPANY, LLC, et al., Defendants and Respondents.
• Court: California Court of Appeals

191 Cal.App.4th 1047

119 Cal.Rptr.3d 878

111 Fair Empl.Prac.Cas. 424

11 Cal. Daily Op. Serv. 560

2011 Daily Journal D.A.R. 671

Gina M. HOLMES, Plaintiff and Appellant,

v.PETROVICH DEVELOPMENT COMPANY, LLC, et al., Defendants and Respondents.

No. C059133.

Court of Appeal, Third District, California.

Jan. 13, 2011.

Joanna R. Mendoza, Law Offices of Joanna R. Mendoza, Sacramento, for Plaintiff and Appellant.

Robin K. Perkins, Perkins & Associates, Sacramento, for Defendants and Respondents.

SCOTLAND, J.^*

Plaintiff Gina 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.¹ 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. 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 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 means which, so far as the client is aware, 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.

FACTS

Holmes began working for Petrovich as his executive assistant in early June 2004.

The employee handbook, which Holmes admitted reading and signing, contained provisions clearly spelling out the policy concerning use of the company's technology resources, such as computers and e-mail accounts. The handbook directs employees that the company's technology resources should be used only for company business and that employees are prohibited from sending or receiving personal e-mails. Moreover, the handbook warns that "[e]mployees who use the Company's Technology Resources to create or maintain personal information or messages have no right of privacy with respect to that information or message." The "Internet and Intranet Usage" policy in the handbook specifically states, "E-mail is not private communication, because others may be able to read or access the message. E-mail may best be regarded as a postcard rather than as a sealed letter...." The handbook spells out further that the company may "inspect all files or messages ... at any time for any reason at its discretion" and that it would periodically monitor its technology resources for compliance with the company's policy.

The handbook also set forth the company's policy regarding harassment and discrimination. It directs an employee who thinks that he or she has been subjected to harassment or discrimination to immediately report it to Petrovich or Cheryl Petrovich, who was the company's secretary and handled some human resources functions. If the complaining party is not comfortable reporting the conduct to them, the report should be made to the company's Controller. The policy promises that the complaint will be taken seriously, it will be investigated thoroughly, and there will be no retaliation. The policy also urges the employee, when possible, to confront the person who is engaging in the unwanted conduct and ask the person to stop it.

The next month, July of 2004, Holmes told Petrovich that she was pregnant and that her due date was December 7, 2004. Petrovich recalled that Holmes told him she planned to work up until her due date and then would be out on maternity leave for six weeks.

Holmes did not like it when coworkers asked her questions about maternity leave; she thought such comments were inappropriate. She asked " [t]hat little group of hens" to stop, and they complied. Holmes recalled having about six conversations with Petrovich about her pregnancy, during which they discussed her belly getting big and baby names. She thought "belly-monitoring" comments were inappropriate, but never told Petrovich that he was being offensive.

On Friday morning, August 6, 2004, Petrovich sent Holmes an e-mail discussing various topics, including that they needed to determine how they were going to handle getting a qualified person to help in the office who would be up to speed while Holmes was on maternity leave. He explained that, given his schedule and pace, this would not be a simple task. Thus, they needed to coordinate the transition so neither he nor Holmes would be stressed about it before or after Holmes left on maternity leave. Petrovich stated: "My recollection from the email you sent me when you told me you were pregnant and in our subsequent conversations, you are due around December 7th and will be out six weeks. We are usually swamped between now and the third week of December. The good news is between the third week of December to the second week of January, it slows down a little."

Holmes e-mailed Petrovich a few hours later and advised him that she estimated starting her maternity leave around November 15, and that the time estimate of six weeks might not be accurate as she could be out for the maximum time allowed by the employee handbook and California law, which is four months. She did not expect to be gone for the full four months but thought she should mention it as a possibility. Holmes believed that "Leslie" was "capable of picking up most of the slack" while Holmes was gone, and that the company could hire a "temp just to cover some of the receptionist duties so that Leslie could be more available...."

A short time later, Petrovich responded, "I need some honesty. How pregnant were you when you interviewed with me and what happened to six weeks? Leslie is not and cannot cover your position, nor can a temp. That is an extreme hardship on me, my business and everybody else in the company. You have rights for sure and I am not going to do anything to violate any laws, but I feel taken advantage of and deceived for sure."

Holmes replied that she thought the subject was better handled in person, "but here it goes anyway. [¶] I find it offensive that you feel I was dishonest or deceitful. I wrote a very detailed email explaining my pregnancy as soon as the tests from my amniocentesis came back that everything was 'normal' with the baby. An amnio cannot be performed until you are nearly 4 months pregnant, hence the delay in knowing the results. I am 39 years old, and therefore, there was a chance that there could be something 'wrong' or 'abnormal' with the baby. If there had been, I had decided not to carry the baby to term. That is a very personal choice, and not something that I wanted to have to share with people at work; so in order to avoid that, I waited until I knew that everything was o.k. before telling anyone I was pregnant. [¶] I've also had 2 miscarriages at 3 months into my pregnancy, and could not bear having to share that with co-workers again, as I have in the past. [¶] These are very important and personal decisions that I made. I feel that I have the right to make these decisions, and there is no deceipt [ sic ] or dishonesty involved with this. On a more professional level; there is no requirement in a job interview or application to divulge if you are pregnant or not; in fact, I believe it's considered unethical to even inquire as to such. [¶] At this point, I feel that your words have put us in a bad position where our working relationship is concerned, and I don't know if we can get past it. [¶] As long as we're being straightforward with each other, please just tell me if what you are wanting at this time, is for me to not be here anymore, because that is how it feels. [¶] I need to go home and gather my thoughts."

Because he was concerned that Holmes might be quitting, Petrovich forwarded their e-mail exchange to Cheryl Petrovich; Lisa Montagnino, who handled some human resources functions; in-house counsel Bruce Stewart; and Jennifer Myers, who handled payroll and maintained...