|
|
HOLMES v. PETROVICH DEVELOPMENT CO., LLC
191 Cal.App.4th 1047 (2011)
GINA M. HOLMES, Plaintiff and Appellant,
v.
PETROVICH DEVELOPMENT COMPANY, LLC, et al., Defendants and Respondents.
No. C059133.
Court of Appeals of California, Third District.
January 13, 2011.
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.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 a 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. FACTSHolmes began working for Petrovich as his executive assistant in early June 2004.
* Retired Presiding Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
1. Hereafter, we will refer to Petrovich Development Company, LLC, as the company, to Paul Petrovich as Petrovich, and to them collectively as defendants.
2. In her reply brief, Holmes says the court should have denied the motion for summary adjudication in its entirety because it was not timely served. This argument is forfeited because it is raised for the first time in her reply brief without a showing of good cause. (Garcia v. McCutchen (1997) 16 Cal.4th 469, 482, fn. 10 [66 Cal.Rptr.2d 319, 940 P.2d 906]; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764-765 [60 Cal.Rptr.2d 770].) "Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument." (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453 [13 Cal.Rptr.2d 432]; see Reichardt v. Hoffman, supra, 52 Cal.App.4th at pp. 764-765.) In any event, in overruling Holmes's objection to the defect in service, the court did not err in ruling Holmes waived the defect by filing an opposition and appearing at the hearing on the motion. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 696-698 [91 Cal.Rptr.2d 844].)
3. Section 917, subdivision (b) is derived from the statute at issue in Scott v. Beth Israel Medical Center, Inc., supra, 847 N.Y.S.2d 436, New York's Civil Practice Law and Rules, section 4548, which states: "No communication privileged under this article shall lose its privileged character for the sole reason that it is communicated by electronic means or because persons necessary for the delivery or facilitation of such electronic communication may have access to the content of the communication." (See Cal. Law Revision Com. com., reprinted at 29B pt. 3A West's Ann. Evid. Code (2009 ed.) foll. § 917, p. 267.)
4. The court instructed the jury earlier that, to establish her claim for invasion of privacy, Holmes had to prove the following five elements: (1) she had a reasonable expectation of privacy in precluding the dissemination or misuse of sensitive and confidential information under the circumstances; (2) Petrovich invaded her privacy by disseminating or misusing her sensitive or confidential information; (3) the conduct was a serious invasion of her privacy; (4) she was harmed; and (5) Petrovich's conduct was a substantial factor in causing her harm.
|
|