Wood v. Super. Ct.

Filed 4/8/20 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

CHRISTYNNE LILI WRENE WOOD, D076325

Petitioner,

v. (San Diego County Super. Ct.
No. 37-2018-00019066-CU-CR-
THE SUPERIOR COURT OF SAN DIEGO CTL)
COUNTY,
ORDER MODIFYING OPINION
Respondent;
NO CHANGE IN JUDGMENT
CFG JAMACHA, LLC, et al.,

Real Parties in Interest.

THE COURT:

It is ordered that the opinion filed herein on March 13, 2020, be modified as

follows:

On pages 5 and 6, in fifth sentence of the paragraph beginning, "After the parties

were unable," the phrase "Crunch's public statements" is replaced with "DFEH's public

statements," so that the modified paragraph reads as follows:

After the parties were unable to resolve their dispute informally,
Crunch filed a motion to compel production of documents, including
 the email at issue. Crunch contended that the documents were
relevant, discoverable, and nonprivileged. Crunch disputed that an
attorney-client relationship could exist between the DFEH and
Wood, given DFEH's governmental function. Among other things,
Crunch cited DFEH's letters to Crunch during its investigation of
Wood's complaint, where it stated that " 'DFEH serves as a neutral
fact-finder and represents the state of California rather than the
complaining party.' " Crunch asserted these letters were consistent
with DFEH's public statements, which state, " 'The DFEH will
conduct an impartial investigation. [DFEH] is not an advocate for
either the person complaining or the person complained against.
[DFEH] represents the state.' " Crunch argued that DFEH may act
only on behalf of the state and, similar to a criminal prosecutor, it
could not compromise its impartiality by undertaking to represent a
specific individual. Crunch concluded that Wood could not show
that her communications with DFEH were for the purpose of
securing legal advice or retaining DFEH lawyers as her counsel.

There is no change in the judgment.

HUFFMAN, Acting P. J.

Copies to: All parties

2
Filed 3/13/20 (unmodified version)

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

CHRISTYNNE LILI WRENE WOOD, D076325

Petitioner,

v. (San Diego County Super. Ct.
No. 37-2018-00019066-CU-CR-
THE SUPERIOR COURT OF SAN DIEGO CTL)
COUNTY,

Respondent;

CFG JAMACHA, LLC, et al.,

Real Parties in Interest.

ORIGINAL PROCEEDINGS in mandate. Joel R. Wohlfeil, Judge. Petition

denied.

ACLU Foundation of San Diego & Imperial Counties, David Loy, Melissa

DeLeon; Nixon Peabody, Michael Lindsay, Seth D. Levy, Erin Holyoke; ACLU

Foundation of Southern California, Amanda Goad and Aditi Fruitwala, for Petitioner.

No appearance for Respondent.
 Liedle, Larson & Vail, Tamara G. Vail and Ryan G. Rupe, for Real Parties in

Interest CFG Jamacha, LLC and John Romeo.

Xavier Becerra, Attorney General, Michael L. Newman, Assistant Attorney

General, Cherokee DM Melton and Anthony V. Seferian, Deputy Attorneys General, for

Real Party in Interest California Department of Fair Employment and Housing.

Petitioner Christynne Lili Wrene Wood contacted the California Department of

Fair Employment and Housing (DFEH) to report alleged gender discrimination by her

Crunch fitness club, which is owned and operated by CFG Jamacha, LLC and John

Romeo (collectively, Crunch). After an investigation, DFEH filed a lawsuit against

Crunch alleging violations of the Unruh Civil Rights Act (Civ. Code, § 51) for unlawful

discrimination on the basis of gender identity or expression. Wood intervened as a

plaintiff in the lawsuit. During discovery, Crunch requested that Wood produce all

communications with DFEH relating to Crunch. As relevant here, Wood refused to

produce one such communication, a prelitigation email she sent to DFEH lawyers

regarding her DFEH complaint, on the grounds of attorney-client privilege. Crunch

moved to compel production of the email, and the trial court granted the motion.

Wood filed a petition for writ of mandate in this court. She argued that the trial

court erred by overruling her objection based on the attorney-client privilege and

compelling production of the email. We summarily denied the petition. The California

Supreme Court granted review and transferred the matter back to this court with

directions "to vacate [our] order denying mandate and to issue an order directing the

2
superior court to show cause why the relief sought in the petition should not be granted."

We issued the order to show cause as directed, and these proceedings followed.

We conclude that Wood has not shown the attorney-client privilege applies to the

email at issue. A prima facie showing of privilege requires that the communication be

made in the course of an attorney-client relationship. (See Evid. Code, § 952; Costco

Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733 (Costco).) DFEH lawyers

have an attorney-client relationship with the State of California. Wood has not shown

DFEH lawyers formed an attorney-client relationship with her. As such, any

communications between Wood and DFEH lawyers were not made in the course of an

attorney-client relationship and were not privileged. We therefore deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

According to DFEH's operative complaint, Wood is a member of a Crunch fitness

club in El Cajon, California. She is a transgender woman. In 2016, she began physically

transitioning from male to female. After she was harassed by another member in the

Crunch men's locker room, Wood provided Crunch with medical verification of her

transition and requested use of the women's locker room. Crunch declined Wood's

request but told her she would be allowed to use Crunch's more exclusive "platinum"

men's locker room. Wood reluctantly agreed and continued patronizing the gym. The

next year, Wood legally changed her name and gender marker to female. She repeated

her request to Crunch that she be allowed to use the women's locker room. Crunch again

declined. It told Wood that she would need to complete " 'sex-reassignment surgery' " in

order to use the women's locker room. However, after Wood was again harassed by

3
another member, this time in the platinum men's locker room, Crunch consented to

Wood's use of the women's locker room.

Based on these allegations, DFEH alleged a cause of action against Crunch for

unlawful discrimination based on gender identity and expression. (Civ. Code, § 51,

subds. (b), (e)(5).) On behalf of Wood, DFEH sought statutory damages of $4,000 for

each time Wood was denied access to the women's locker room. (Id., § 52, subd. (a).) In

the alternative, DFEH sought actual damages for Wood's out-of-pocket expenses and

emotional distress.

DFEH also sought injunctive relief, including that Crunch (1) cease and desist

discrimination against Wood and all other current and prospective members based on

gender identity, gender expression, or any other protected characteristic; (2) provide

Wood and all other current and prospective members access to the locker room and

restroom facilities that accord with their gender identity; (3) not retaliate against Wood

for her complaint of discrimination; (4) post a copy of the court's judgment in an area

visible to all current and prospective members; (5) provide recurring antidiscrimination

training of at least two hours to all owners, managers, and employees at Crunch, with

special emphasis on sex and gender discrimination; (6) post a copy of DFEH's "Unruh

Civil Rights Act Fact Sheet" in an area visible to all current and prospective members;

(7) modify all Crunch nondiscrimination policies to comply with applicable California

and federal law, including an explicit statement that current and prospective members

shall have access to locker room and restroom facilities that accord with their gender

identity; (8) develop, implement, and distribute a written policy and procedures for

4
handling and documenting member complaints and Crunch's responses; and (9) provide

DFEH with recurring reports certifying Crunch's compliance. DFEH demanded its

reasonable attorney fees and costs.

Wood, represented by her own counsel, filed a complaint in intervention.

(Gov. Code, § 12965, subd. (a).) Based on a similar set of factual allegations, Wood

alleged causes of action against Crunch for unlawful discrimination, negligence, and

negligent hiring and supervision. In addition to the relief requested by DFEH, Wood

requested punitive damages and her own reasonable attorney fees and costs.

As noted, during discovery, Crunch requested that Wood produce all

communications with DFEH relating to Crunch. Wood objected to the request based on,

among other grounds, the attorney-client privilege. Wood eventually produced certain

documents and withheld others, including the email at issue in this proceeding. In a

privilege log, Wood described the email as an "Email from Christynne Wood to Nelson

Chan and Jeanette Hawn regarding Ms. Wood's DFEH complaint." She asserted

objections based on the attorney-client privilege, the official information privilege, and

the deliberative process privilege. The email was sent in June 2017, during DFEH's

investigation, after Wood had filed an administrative complaint with DFEH, but before

DFEH filed suit against Crunch. Chan and Hawn are DFEH lawyers.

After the parties were unable to resolve their dispute informally, Crunch filed a

motion to compel production of documents, including the email at issue. Crunch

contended that the documents were relevant, discoverable, and nonprivileged. Crunch

disputed that an attorney-client relationship could exist between the DFEH and Wood,

5
given DFEH's governmental function. Among other things, Crunch cited DFEH's letters

to Crunch during its investigation of Wood's complaint, where it stated that " 'DFEH

serves as a neutral fact-finder and represents the state of California rather than the

complaining party.' " Crunch asserted these letters were consistent with Crunch's public

statements, which state, " 'The DFEH will conduct an impartial investigation. [DFEH] is

not an advocate for either the person complaining or the person complained against.

[DFEH] represents the state.' " Crunch argued that DFEH may act only on behalf of the

state and, similar to a criminal prosecutor, it could not compromise its impartiality by

undertaking to represent a specific individual. Crunch concluded that Wood could not

show that her communications with DFEH were for the purpose of securing legal advice

or retaining DFEH lawyers as her counsel.

Crunch further contended that the deliberative process and official information

privileges did not apply. The deliberative process privilege was inapplicable in litigation

unrelated to a review of agency action. The official information privilege was only a

qualified privilege, and the necessity for preserving the confidentiality of the

communication did not outweigh the necessity for disclosure in the interest of justice.

Wood opposed the motion. She claimed the attorney-client privilege applied

because "at all relevant times, the DFEH was acting in a legal capacity and Ms. Wood

believed the DFEH represented her." In a declaration submitted with her opposition,

Wood stated, "Throughout communications with the DFEH, I thought the DFEH was

helping me with a legal dispute and believed that all conversations I had with DFEH

lawyers were confidential. During the times I spoke with DFEH lawyers and DFEH

6
employees, I thought that lawyers had to maintain the confidences of people they were

speaking to." In addition, in a deposition, Wood asserted that a DFEH lawyer

represented her, along with her retained counsel.

Wood relied on federal cases finding an attorney-client privilege between the U.S.

Equal Employment Opportunity Commission (EEOC) and complaining parties who

claimed to seek legal advice from the EEOC. She distinguished the situation of criminal

prosecutors because "prosecutors do not file cases on behalf of real parties in interest[]

and do not seek victim-specific relief."

Wood also contended that the official information privilege protected the email at

issue. (See Evid. Code, § 1040.) She acknowledged the privilege was not absolute, but

she claimed that the need for confidentiality outweighed the need for disclosure in

litigation. She argued, "It is in the public interest to allow claimants like Ms. Wood to

file claims with the DFEH confidentially in order to encourage the reporting of

discrimination and facilitate an open and truthful investigative process."

In a tentative ruling, the court expressed skepticism that the attorney-client

privilege applied, though it appeared unaware that Wood was communicating directly

with DFEH lawyers. Regarding the official information privilege, the court weighed the

need for disclosure against the need for confidentiality and concluded that the documents

should be produced.

At the hearing on Crunch's motion to compel, DFEH's counsel clarified that the

email at issue (as well as another withheld email) were communications directly between

Wood and DFEH lawyers. She argued, "[T]here is, in fact, attorney-client privilege

7
between DFEH lawyers and aggrieved individuals in general." Both DFEH counsel and

Wood's counsel emphasized the federal cases finding that communications with the

EEOC may be privileged. Following this argument, the court was still unpersuaded that

the attorney-client privilege applied. But, apparently to assess the official information

privilege, the court accepted in camera review of the emails.

In a subsequent minute order, the court wrote that, "in evaluating the privileges

asserted by DFEH and Wood, [it] has strived to balance [Crunch's] need to obtain the

materials to defend DFEH and Wood's allegations with Wood's interest to preserve her

privacy, to the extent she hasn't waived her right to do so by virtue of her allegations."

As to the email at issue here, the court overruled Wood's objections and ordered the email

produced. (As to the other email, the court sustained Wood's objections without further

explanation.)

Wood filed a petition for writ of mandate challenging the court's order compelling

production of the email. After we summarily denied the petition, and the Supreme Court

granted review and transferred the matter back to this court, we issued an order to show

8
cause why the relief sought in Wood's petition should not be granted. Crunch and DFEH

have participated in these proceedings as real parties in interest.1

DISCUSSION

I

Nature and Scope of the Attorney-Client Privilege

"The attorney-client privilege, set forth at Evidence Code section 954, confers a

privilege on the client 'to refuse to disclose, and to prevent another from disclosing, a

confidential communication between client and lawyer . . . .' The privilege 'has been a

hallmark of Anglo-American jurisprudence for almost 400 years.' [Citation.] Its

fundamental purpose 'is to safeguard the confidential relationship between clients and

their attorneys so as to promote full and open discussion of the facts and tactics

surrounding individual legal matters. [Citation.] . . . [¶] Although exercise of the

privilege may occasionally result in the suppression of relevant evidence, the Legislature

of this state has determined that these concerns are outweighed by the importance of

preserving confidentiality in the attorney-client relationship. As [the Supreme Court] has

stated: "The privilege is given on grounds of public policy in the belief that the benefits

1 DFEH filed a similar petition for writ of mandate, which we summarily denied as
well. (Dept. of Fair Employment & Housing v. Superior Court (Aug. 20, 2019,
D076317).) DFEH filed its own petition for review, but the Supreme Court denied the
petition. (Dept. of Fair Employment & Housing v. Superior Court (Oct. 9, 2019,
S257728).) In its return to Wood's petition, filed in this proceeding, DFEH relies on
exhibits to its own petition for writ of mandate. DFEH has not filed a request for judicial
notice or attempted in any other proper manner to bring those exhibits to our attention in
this proceeding. We therefore will not consider them. Nonetheless, it does not appear
that considering the exhibits would have a material effect on our conclusions here, given
DFEH's verified factual statements in its return, which cover similar ground.
9
derived therefrom justify the risk that unjust decisions may sometimes result from the

suppression of relevant evidence." [Citations.]' [Citation.] '[T]he privilege is absolute

and disclosure may not be ordered, without regard to relevance, necessity or any

particular circumstances peculiar to the case.' " (Costco, supra, 47 Cal.4th at p. 732.)

"The rule excluding the testimony of an attorney as to confidential

communications made to him by his client must be strictly construed, as it has a tendency

to suppress relevant facts that may be necessary for a just decision." (Brunner v.

Superior Court (1959) 51 Cal.2d 616, 618.) "The privilege is also to be strictly construed

'where the [attorney-client] relationship is not clearly established.' " (Uber Technologies,

Inc. v. Google LLC (2018) 27 Cal.App.5th 953, 967.)

For purposes of the privilege, a "client" is "a person who . . . consults a lawyer for

the purpose of retaining the lawyer or securing legal service or advice from him in his

professional capacity . . . ." (Evid. Code, § 951.) A "confidential communication

between client and lawyer," which is protected by the privilege, is "information

transmitted between a client and his or her lawyer in the course of that relationship and in

confidence . . . ." (Id., § 952.) The client is the holder of the privilege (id., § 953) and

may prevent disclosure of a privileged communication by another person (id., § 954).

"The statute treats the term 'confidential communication between client and

lawyer' as one that requires further definition, and the definition it provides extends only

to that information transmitted 'in the course of [the attorney-client] relationship.'

(Evid. Code, § 952, italics added.) The same definition also refers to 'those who are

present to further the interest of the client in the consultation' and 'the accomplishment of

10
the purpose for which the lawyer is consulted.' (Ibid., italics added.) A similar focus is

plain in related definitions of the Evidence Code. For example, the statute defines 'client'

as someone who 'consults a lawyer for the purpose of retaining the lawyer or securing

legal service or advice from him in his professional capacity.' (Id., § 951.) And a

'confidential communication between client and lawyer,' according to the statute,

'includes a legal opinion formed and the advice given by the lawyer in the course of that

relationship.' (Id., § 952.) These references cut against an understanding of the privilege

in this context as encompassing every conceivable communication a client and attorney

share, and instead link the privilege to communications that bear some relationship to the

provision of legal consultation." (Los Angeles County Bd. of Supervisors v. Superior

Court (2016) 2 Cal.5th 282, 294-295 (Los Angeles County).)

Indeed, the statutes make clear that the privilege does not apply simply because a

person discusses a legal matter with an attorney. "Significantly, a communication is not

privileged, even though it may involve a legal matter, if it has no relation to any

professional relationship of the attorney with the client. [Citation.] Moreover, it is not

enough that the client seek advice from an attorney; such advice must be sought from the

attorney 'in his professional capacity.' ([Evid. Code,] § 951.)" (People v. Gionis (1995)

9 Cal.4th 1196, 1210 (Gionis); accord, City & County of San Francisco v. Superior Court

(1951) 37 Cal.2d 227, 235 ["[O]nly communications made to an attorney in the course of

professional employment are privileged."]; League of California Cities v. Superior Court

(2015) 241 Cal.App.4th 976, 989.)

11
 It is well-settled that a public entity enjoys an attorney-client relationship with its

lawyers and the attorney-client privilege protects communications made in the course of

that relationship. (See, e.g., Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 371

(Roberts).) For example, "[a] city council needs freedom to confer with its lawyers

confidentially in order to obtain adequate advice, just as does a private citizen who seeks

legal counsel, even though the scope of confidential meetings is limited by this state's

public meeting requirements. [Citations.] The public interest is served by the privilege

because it permits local government agencies to seek advice that may prevent the agency

from becoming embroiled in litigation, and it may permit the agency to avoid

unnecessary controversy with various members of the public." (Id. at pp. 380-381.)

It is also well-settled that lawyers who prosecute actions, in an exercise of a public

entity's police power, occupy a unique position in this context. For example, a district

attorney "is not an 'attorney' who represents a 'client' as such. He is a public officer,

under the direct supervision of the Attorney General [citation], who 'represents the

sovereign power of the people of the state, by whose authority and in whose name all

prosecutions must be conducted.' " (Shepherd v. Superior Court (1976) 17 Cal.3d 107,

122 (Shepherd).) "The prosecutor is a public official vested with considerable

discretionary power to decide what crimes are to be charged and how they are to be

prosecuted. [Citations.] In all his activities, his duties are conditioned by the fact that he

'is the representative not of any ordinary party to a controversy, but of a sovereignty

whose obligation to govern impartially is as compelling as its obligation to govern at all;

and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but

12
that justice shall be done. As such, he is in a peculiar and very definite sense the servant

of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.' "

(People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 266 (Greer).)

"One of the reasons often cited for the institution of public prosecutions is that

'Americans believed that an officer in a position of public trust could make decisions

more impartially than could the victims of crimes or other private complainants,' persons

who often brought prosecutions under the older English system of criminal justice.

[Citations.] This advantage of public prosecution is lost if those exercising the

discretionary duties of the district attorney are subject to conflicting personal interests

which might tend to compromise their impartiality. In short, the prosecuting attorney ' "is

the representative of the public in whom is lodged a discretion which is not to be

controlled by the courts, or by an interested individual." ' " (Greer, supra, 19 Cal.3d at

p. 267.)

These principles, moreover, are not limited to criminal prosecutions. (People ex

rel. Clancy v. Superior Court (1985) 39 Cal.3d 740, 746 (Clancy).) "Indeed, it is a

bedrock principle that a government attorney prosecuting a public action on behalf of the

government must not be motivated solely by a desire to win a case, but instead owes a

duty to the public to ensure that justice will be done." (County of Santa Clara v. Superior

Court (2010) 50 Cal.4th 35, 57.) "A fair prosecution and outcome in a proceeding

brought in the name of the public is a matter of vital concern both for defendants and for

the public, whose interests are represented by the government and to whom a duty is

13
owed to ensure that the judicial process remains fair and untainted by an improper

motivation on the part of attorneys representing the government." (Ibid.)

For example, in actions by state and local agencies to establish paternity and for

child support, as well as other similar actions, the person benefitted by the action does not

enjoy an attorney-client relationship with the public entity lawyers prosecuting the action.

"The statutory scheme empowers the district attorney [now local child support agency,

see Fam. Code, § 17404] to establish, modify and enforce support obligations 'in the

name of the county on behalf of the child, children or caretaker parent.' [Citation.] The

purpose of such actions is to provide a direct procedure for a county to recoup public

assistance, and to assist parents with limited resources to enforce support obligations so

that public funds are not again unnecessarily expended. [Citations.] Notwithstanding the

collateral benefit to the custodial parent, the 'client' in such actions remains the county."

(Monterey County v. Cornejo (1991) 53 Cal.3d 1271, 1284, italics added (Monterey

County); accord, Jager v. County of Alameda (1992) 8 Cal.App.4th 294, 297.) Family

Code section 17406 is declarative of existing law, and it provides, "In all actions

involving paternity or support, including, but not limited to, other proceedings under this

code, and under Division 9 (commencing with Section 10000) of the Welfare and

Institutions Code, the local child support agency and the Attorney General represent the

public interest in establishing, modifying, and enforcing support obligations. No

attorney-client relationship shall be deemed to have been created between the local child

support agency or Attorney General and any person by virtue of the action of the local

14
child support agency or the Attorney General in carrying out these statutory duties."

(Fam. Code, § 17406, subd. (a).)

II

DFEH Powers and Procedures

The authority of DFEH is found in the Fair Employment and Housing Act (FEHA;

Gov. Code, § 12900 et seq.). FEHA prohibits discrimination in employment and housing

accommodations on the basis of protected characteristics, including sex and gender (id.,

§§ 12940 et seq., 12955 et seq.), and it incorporates the Unruh Civil Rights Act's

prohibitions on discrimination in public accommodations (id., § 12948). These

prohibitions reflect the strong and longstanding public policy of this state to protect the

right of all persons to seek employment, obtain housing, and otherwise participate in

public life free of discrimination. (Gov. Code, § 12920; Civ. Code, § 51, subd. (b).)

"The [Unruh Civil Rights] Act expresses a state and national policy against

discrimination on arbitrary grounds. [Citation.] Its provisions were intended as an active

measure that would create and preserve a nondiscriminatory environment in California

business establishments by 'banishing' or 'eradicating' arbitrary, invidious discrimination

by such establishments." (Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 167;

accord, White v. Square, Inc. (2019) 7 Cal.5th 1019, 1025.) FEHA's provisions,

including the establishment of DFEH, are "an exercise of the police power of the state for

the protection of the welfare, health, and peace of the people of this state." (Gov. Code,

§ 12920.)

15
 Under FEHA, DFEH is tasked with, among other things, receiving, investigating,

conciliating, mediating, and prosecuting complaints of unlawful discrimination.

(Gov. Code, § 12930, subd. (f).) Any person who claims to have suffered discrimination

or other unlawful practice may file a complaint with DFEH. (Id., § 12960, subd. (c).) If

the complaint alleges facts sufficient to show a violation, DFEH "shall make [a] prompt

investigation in connection therewith." (Id., § 12963.) The investigation may include

investigative subpoenas, written interrogatories, requests for deposition, and requests for

production of documents. (Id., §§ 12963.1, 12963.2, 12963.3, 12963.4.) These

discovery tools may be enforced by court order. (Id., § 12963.5; see generally Dept. of

Fair Employment & Housing v. Superior Court (2002) 99 Cal.App.4th 896, 901.)

If DFEH determines that a violation has occurred, it will attempt to "eliminate the

unlawful employment practice complained of by conference, conciliation, and

persuasion." (Gov. Code, § 12963.7, subd. (a).) If this attempt fails, DFEH may, in its

discretion, "bring a civil action in the name of the department on behalf of the person

claiming to be aggrieved." (Id., § 12965, subd. (a); see Cal. Code Regs., tit. 2, § 10031,

subd. (c) [identifying factors].) "In any civil action, the person claiming to be aggrieved

shall be the real party in interest and shall have the right to participate as a party and be

represented by that person's own counsel." (Gov. Code, § 12965, subd. (a).) If DFEH

decides not to file a civil action, the complaining party may file an action in his or her

own name. (Id., § 12965, subd. (b).)

DFEH maintains a website that, among other things, provides the public with

information about its practices and procedures. On one page, DFEH provides answers to

16
frequently asked questions. In response to one question, "Does DFEH represent

complainants?" DFEH provides the following answer: "No. During the investigation,

DFEH acts as an objective fact-finder, gathering evidence to determine whether the

complainant's allegations can be proven. DFEH does not represent either the

complainant or the respondent. [¶] If the investigation establishes that there is evidence

to support the complainant's allegations, and the parties do not reach a settlement,

DFEH's Legal Division reviews the case for potential litigation in court. DFEH has

attorneys who prepare and file cases in court. [¶] When DFEH decides to sue, it files a

civil lawsuit in the name of the Department of Fair Employment and Housing against the

employer. DFEH attorneys represent the Department, not the individual complainant.

The complainant is a real party in interest in the lawsuit. [¶] Although the assigned

DFEH attorney is not the complainant's personal legal advisor, the complainant's interests

are important in the litigation, and the complainant receives 100% of any remedies

recovered, with the exception of attorney fees and costs. DFEH does not charge

complainants attorney fees or expert witness fees, nor does it take a percentage of any

award or settlement."2

2 By separate order, we granted Crunch's request for judicial notice of several pages
from DFEH's website and other DFEH public statements. While we may not judicially
notice the truth of any statement in these materials, we may take notice of the fact that
they were made to the public. (See Mangini v. R.J. Reynolds Tobacco Co. (1994)
7 Cal.4th 1057, 1063-1064; Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 518.)
17
 III

Wood's Communication with DFEH Lawyers

Wood contends the trial court erred by granting Crunch's motion to compel

production of an email she sent to DFEH lawyers during their investigation of her

complaint against Crunch. "A trial court's determination of a motion to compel discovery

is reviewed for abuse of discretion. [Citation.] An abuse of discretion is shown when the

trial court applies the wrong legal standard. [Citation.] However, when the facts asserted

in support of and in opposition to the motion are in conflict, the trial court's factual

findings will be upheld if they are supported by substantial evidence. [Citations.] The

party claiming the privilege has the burden of establishing the preliminary facts necessary

to support its exercise, i.e., a communication made in the course of an attorney-client

relationship. [Citation.] Once that party establishes facts necessary to support a prima

facie claim of privilege, the communication is presumed to have been made in confidence

and the opponent of the claim of privilege has the burden of proof to establish the

communication was not confidential or that the privilege does not for other reasons

apply." (Costco, supra, 47 Cal.4th at p. 733.)

The central issue in this proceeding is whether Wood's email to DFEH lawyers

was transmitted in the course of an attorney-client relationship, within the meaning of

Evidence Code section 952, and was therefore privileged. "The question of whether an

attorney-client relationship exists is one of law. [Citations.] However, when the

evidence is conflicting, the factual basis for the determination must be determined before

the legal question is addressed." (Responsible Citizens v. Superior Court (1993)

18
16 Cal.App.4th 1717, 1733.) Wood primarily relies on her declaration, where she

asserted, "Throughout communications with the DFEH, I thought the DFEH was helping

me with a legal dispute and believed that all conversations I had with DFEH lawyers

were confidential." She also claimed in a deposition that DFEH represents her in the

current litigation, though DFEH consistently denied such representation in its discovery

responses. In this court, Wood's argument is that, regardless whether DFEH represented

her, the attorney-client privilege should apply to her communication with DFEH lawyers

because she was seeking legal advice from them. For its part, DFEH asserts that its

lawyers "provided legal advice to Wood" and "shared DFEH's legal analysis with her in

relation to her DFEH complaint against Crunch Fitness."3

Ordinarily, when a party seeks legal advice from a lawyer, and the lawyer

provides such advice, an attorney-client relationship is formed. (Beery v. State Bar

(1987) 43 Cal.3d 802, 811.) The formation of such a relationship imposes fiduciary

duties, including a duty of care, on the attorney. (Streit v. Covington & Crowe (2000)

82 Cal.App.4th 441, 446.) But here, as Wood acknowledges, she did not have an

attorney-client relationship with DFEH in this sense. She does not claim that DFEH

lawyers represented her or served as her personal legal counsel, and she does not seek to

3 DFEH's factual assertions were not before the trial court when it ruled on Crunch's
motion to compel. We could simply disregard them. (See Pomona Valley Hospital
Medical Center v. Superior Court (2013) 213 Cal.App.4th 828, 835, fn. 5 ["Writ review
does not provide for consideration of evidence not before respondent court at the time of
its ruling."].) But we exercise our discretion to consider them here, because we foresee
no prejudice to Crunch (or Wood) and these assertions help to provide a complete picture
of the factual circumstances at issue in this important matter.
19
impose any fiduciary duties on them. Similarly, consistent with its public and private

statements, DFEH admits, "At all relevant times, Hawn and Chan were acting in their

capacity as DFEH attorneys in the process of assessing Wood's allegations and her

claims under the Unruh Act." (Italics added.)

Wood contends, instead, that the attorney-client relationship necessary for the

privilege is not the same attorney-client relationship that exists in other contexts. She

argues that the attorney-client privilege applies whenever a person speaks with a lawyer

about a legal matter. We disagree with this interpretation of the attorney-client privilege.

The attorney-privilege requires something more than simply speaking to an

attorney about a legal matter. (Los Angeles County, supra, 2 Cal.5th at pp. 294-295;

Gionis, supra, 9 Cal.4th at p. 1210.) To be a client for purposes of the privilege, a person

must "consult[] a lawyer for the purpose of retaining the lawyer or securing legal service

or advice from him in his professional capacity . . . ." (Evid. Code, § 951, italics added.)

Likewise, a privileged communication must be "transmitted between a client and his or

her lawyer in the course of that relationship . . . ." (Id., § 952, italics added.)

As our Supreme Court has explained, "We cannot endorse the Court of Appeal's

apparent view that the attorney-client privilege applies whenever issues touching upon

legal matters are discussed with an attorney. That has never been the law. Significantly,

a communication is not privileged, even though it may involve a legal matter, if it has no

relation to any professional relationship of the attorney with the client. [Citation.]

Moreover, it is not enough that the client seek advice from an attorney; such advice must

20
be sought from the attorney 'in his professional capacity.' ([Evid. Code,] § 951.)"

(Gionis, supra, 9 Cal.4th at p. 1210.)

In Gionis, our Supreme Court considered whether the attorney-client privilege

covered statements made by the defendant to a lawyer after the lawyer told the defendant

he would not represent him. (Gionis, supra, 9 Cal.4th at p. 1209.) Although the Supreme

Court did not announce "a bright line rule that any communication made after an

attorney's refusal of representation is unprivileged as a matter of law," it was nonetheless

persuaded "that a person could have no reasonable expectation of being represented by an

attorney after the attorney's explicit refusal to undertake representation. [Citation.]

Moreover, evidence of an attorney's express refusal of representation may give rise to a

reasonable inference that, in continuing to speak to the attorney, the person is not

thereafter consulting with the attorney for advice 'in his professional capacity.' " (Id. at

p. 1211.)

Similarly here, the DFEH has consistently maintained that it does not represent

complainants in general or Wood in particular. On its public website, it disclaims any

such representation: During its investigation, "DFEH does not represent either the

complainant or the respondent." During litigation, "DFEH attorneys represent the

Department, not the individual complainant." In its letters notifying Crunch of Wood's

complaint, DFEH stated that it " 'serves as a neutral fact-finder and represents the state of

California rather than the complaining party [i.e., Wood].' " DFEH lawyers are counsel

of record only for the Department, and their discovery responses in the underlying

litigation reflect that fact. These statements are consistent with DFEH's role as a civil

21
enforcement agency of the government. (See Monterey County, supra, 53 Cal.3d at

p. 1284; Clancy, supra, 39 Cal.3d at p. 746; see also Greer, supra, 19 Cal.3d at p. 266;

Shepherd, supra, 17 Cal.3d at p. 122.) The fact that DFEH has consistently disclaimed

representation strongly weighs against the finding of an attorney-client relationship here.

(See Gionis, supra, 9 Cal.4th at p. 1211; see also Fox v. Pollack (1986) 181 Cal.App.3d

954, 959 ["Except for those situations where an attorney is appointed by the court, the

attorney-client relationship is created by some form of contract, express or implied,

formal or informal."].)

Wood has not shown that any other basis exists for an attorney-client relationship

that would support the application of the privilege. Wood points out that the privilege

protects a prospective client's communications with a lawyer even if the lawyer is never

retained. (See, e.g., Gionis, supra, 9 Cal.4th at p. 1208.) But, as discussed above, DFEH

lawyers cannot represent Wood. Wood was not a prospective client seeking

representation, so she cannot claim the privilege on this basis. Outside the context of a

prospective client, "an actual attorney-client relationship is required to sustain claims of

the privilege." (Tuft et al., Cal. Practice Guide: Professional Responsibility (The Rutter

Group 2019) ¶ 3:26.2.) Wood has not established an actual attorney-client relationship

for reasons we have already discussed.

Wood relies on two Court of Appeal opinions that broadly state that an attorney-

client relationship is formed whenever a person consults an attorney for the purpose of

obtaining the attorney's legal advice. (See Edwards Wildman Palmer LLP v. Superior

Court (2014) 231 Cal.App.4th 1214, 1226 (Edwards Wildman); Kerner v. Superior Court

22
(2012) 206 Cal.App.4th 84, 116-117 (Kerner).) Our Supreme Court in Gionis held,

however, that such a broad proposition is not always correct. (Gionis, supra, 9 Cal.4th at

p. 1210.) Our analysis of the statutes above confirms that fact. (See Evid. Code, §§ 951,

952.) And this conclusion makes sense. The attorney-client privilege is not an end in

itself. It is enforced because it is a necessary prerequisite for lawyers to fulfill the

significant duties imposed by the attorney-client relationship. Wood and DFEH seek to

decouple the privilege from the attorney-client relationship itself. Their efforts are

unpersuasive.

In any event, the opinions cited by Wood are inapposite. Edwards Wildman

considered whether "the attorney-client privilege applies to intrafirm communications

between attorneys concerning disputes with a current client, when that client later sues

the firm for malpractice." (Edwards Wildman, supra, 231 Cal.App.4th at p. 1219.) The

court found that it could apply, but "only when a genuine attorney-client relationship

exists" (id. at p. 1234), i.e., not whenever a legal matter is discussed with a fellow

attorney. Kerner considered whether the privilege covered communications between two

attorneys unrelated to a current or former client. (Kerner, supra, 206 Cal.App.4th at

p. 92.) The attorney who claimed to be the client testified that she sought legal advice

from the other attorney regarding various litigation matters. (Id. at p. 118.) The other

attorney stated that he advised the first attorney on legal issues and communicated on her

behalf with other legal counsel. (Ibid.) Under these circumstances, the Court of Appeal

held that the first attorney had established the existence of an attorney-client relationship

with the second, and the privilege applied. (Id. at pp. 118-119.) Given their factual

23
dissimilarities, Wood's reliance on these opinions is unpersuasive. And, at base, they

confirm that an attorney-client relationship is necessary for the privilege to apply, a

relationship that is lacking here.

Wood argues that her relationship with DFEH is sufficient to invoke the attorney-

client privilege because DFEH investigates complaints by members of the public like

Wood, it seeks relief on their behalf, and its activities embody California's strong public

policy against unlawful discrimination. But, given that DFEH lawyers do not represent

complainants like Wood, this mere convergence of interests is insufficient to establish an

attorney-client relationship for purposes of the privilege. Crime victims have a similar

convergence of interests with prosecutors, and prosecutors routinely seek specific relief

on behalf of victims in the form of restitution, but no attorney-client relationship exists

between them. (Greer, supra, 19 Cal.3d at p. 266; Shepherd, supra, 17 Cal.3d at p. 122.)

Similarly, local child support agencies seek and enforce specific relief—child and spousal

support—on behalf of members of the public, but no attorney-client relationship exists

there either. (Monterey County, supra, 53 Cal.3d at p. 1284.) It seems logical that, in all

of these situations, the protection of the attorney-client privilege would lead to more

candor from the benefitted parties and more effective prosecution efforts, as the DFEH

asserts. But that result, however positive, cannot create an attorney-client relationship

where none exists.

Moreover, to the extent the necessity for secrecy motivates Wood and DFEH, the

official information privilege under Evidence Code section 1040 is the government's

exclusive means for protecting such information. "Section 1040 of the Evidence Code

24
'represents the exclusive means by which a public entity may assert a claim of

governmental privilege based on the necessity for secrecy.' " (Shepherd, supra, 17 Cal.3d

at p. 123, fn. omitted.) Official information, for purposes of the privilege, means

"information acquired in confidence by a public employee in the course of his or her duty

and not open, or officially disclosed, to the public prior to the time the claim of privilege

is made." (Evid. Code, § 1040, subd. (a).) A public entity has an absolute privilege to

refuse to disclose such information if disclosure is forbidden by state or federal law. (Id.,

§ 1040, subd. (b)(1).) If disclosure is not forbidden, the public entity may still assert a

qualified privilege. (Id., § 1040, subd. (b)(2).) The qualified privilege generally applies

if "[d]isclosure of the information is against the public interest because there is a

necessity for preserving the confidentiality of the information that outweighs the

necessity for disclosure in the interest of justice[.]" (Ibid.)

This court has recognized, in the analogous context of a district attorney, that the

official information privilege applies to information obtained in the course of a

governmental investigation. "[B]ecause the district attorney does not have 'a "client" as

such,' confidentiality regarding the fruits of investigations of a public prosecutor are

governed exclusively by Evidence Code section 1040, which controls the assertion of

claims for governmental privilege for official information." (People ex rel. Lockyer v.

Superior Court (2000) 83 Cal.App.4th 387, 399.) Although Wood argued in the trial

court that the official information privilege applied, she has not raised that argument in

this court. We therefore have no occasion to consider whether and to what extent the

official information privilege would protect the email at issue here from disclosure.

25
 Wood and DFEH rely on a number of federal district court opinions, mostly

unpublished, which have found a privilege for communications between the EEOC and

antidiscrimination complainants—even though federal courts recognize there is no actual

attorney-client relationship between the EEOC and individual complainants (see, e.g.,

Williams v. United States (D.Ore. 1987) 665 F.Supp. 1466, 1471). We find the opinions

cited by Wood and DFEH unpersuasive.

We note initially that the federal and state laws of privilege are distinct and

somewhat divergent. Federal privileges are a matter of federal common law. (Fed. Rules

Evid., rule 501, 28 U.S.C.) "Because the Federal Rules of Evidence provide that

principles of common law govern rules of privilege, federal courts have the flexibility to

develop rules of privilege on a case-by-case basis." (OXY Resources Cal. LLC v.

Superior Court (2004) 115 Cal.App.4th 874, 888 (OXY).) "Unlike the federal courts,

'[t]he courts of this state . . . are not free to create new privileges as a matter of judicial

policy and must apply only those which have been created by statute. [Citations.]'

[Citations.] Indeed, '[o]ur deference to the Legislature is particularly necessary when we

are called upon to interpret the attorney-client privilege, because the Legislature has

determined 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.]' [Citation]. The area of privilege ' "is one of

the few instances where the Evidence Code precludes the courts from elaborating upon

the statutory scheme." ' " (Id. at pp. 888-889, fn. omitted; accord, Wells Fargo Bank v.

26
Superior Court (2000) 22 Cal.4th 201, 206 ["The privileges set out in the Evidence Code

are legislative creations; the courts of this state have no power to expand them or to

recognize implied exceptions."]; Roberts, supra, 5 Cal.4th at p. 373.)

The federal opinions cited by Wood and DFEH reflect a flexible view of the

attorney-client privilege that we are prohibited by statute from adopting. Many of the

opinions that articulate their legal reasoning rely on the federal joint defense or common

interest privilege, which applies to certain communications even in the absence of an

actual attorney-client relationship. (See, e.g., United States v. Gumbaytay (M.D.Ala.

2011) 276 F.R.D. 671, 675-676 ["Accordingly, this court will follow [other courts] in

recognizing that the common interest rule protects communications between a

governmental agency and persons on whose behalf the governmental agency brings

suit."]; EEOC v. DiMare Ruskin, Inc. (M.D.Fla. Feb. 15, 2012, No. 2:11-CV-158)

2012 U.S. Dist. LEXIS 24951 ["[The common interest privilege] protects

communications between an individual, or the individual's attorney, and an attorney

representing a person or entity that shares a common interest with the individual

regarding a legal matter of common interest."]; EEOC v. Chemtech International Corp.

(S.D.Tex. May 18, 1995, Civ. A. No. H-94-2848) 1995 U.S. Dist. LEXIS 21877 ["In

addition, because the EEOC and the private citizen have many identical interests, the

attorney-client privilege is essentially a joint prosecution privilege that extends to

communications between a party and the attorney for a co-litigant."]; EEOC v. HBE

Corp. (E.D.Mo. May 19, 1994, No. 4:93-CV-722) 1994 U.S. Dist. LEXIS 9326 ["A

client may refuse to disclose confidential communications made for purpose of

27
facilitating or rendering professional legal services to the client by his attorney or a

lawyer representing another in a matter of common interest."].)

This federal joint defense or common interest privilege recognizes "an implied

attorney-client relationship" between a party and the lawyer for a different party, where

the parties share a common interest. (See, e.g., United States v. Henke (9th Cir. 2000)

222 F.3d 633, 637.) Whatever the policy merits of this privilege, it is not available in

California. "The 'joint defense privilege' and the 'common interest privilege' have not

been recognized by statute in California." (OXY, supra, 115 Cal.App.4th at p. 889.)

California has not adopted the federal view that "there is an expanded attorney-client

relationship encompassing all parties and counsel who share a common interest." (Ibid.)

California requires a genuine attorney-client relationship for the privilege to apply.

(Evid. Code, § 952; Los Angeles County, supra, 2 Cal.5th at pp. 294-295; Gionis, supra,

9 Cal.4th at p. 1210.) Federal opinions that rely on the joint defense privilege or common

interest privilege, whether expressly or impliedly, are therefore unpersuasive.4

Other federal opinions cited by Wood and DFEH recognize that no genuine

attorney-client relationship exists between the EEOC and individual complainants, but

they nonetheless find a privilege based on a "de facto" attorney-client relationship. (See,

4 California recognizes a common interest doctrine, but it is not at issue here. The
common interest doctrine preserves the privilege "when parties with common interests
disclose privileged communications to each other. The privilege survives disclosure to a
party with a common interest only if it is necessary to accomplish the privilege holder's
purpose in seeking legal advice. The doctrine extends no further than this because in
California there is no independent statutory joint defense or common interest privilege,
and California courts are not authorized to establish one." (Citizens for Ceres v. Superior
Court (2013) 217 Cal.App.4th 889, 916-917.)
28
e.g., Bauman v. Jacobs Suchard, Inc. (N.D.Ill. 1990) 136 F.R.D. 460, 461 (Bauman)

["While there does not appear to be any formal attorney-client relationship, the EEOC,

through its attorneys, are essentially acting as de facto counsel for the employees."];

EEOC v. Tony's Lounge, Inc. (S.D.Ill. April 9, 2010, No. 08-CV-677) 2010 WL 1444874,

at *2 [same]; EEOC v. Scrub, Inc. (N.D.Ill. May 25, 2010, No. 09-C-4228) 2010 WL

2136807, at *7 [same]; see also National Labor Relations Bd. v. Jackson Hospital Corp.

(D.D.C. 2009) 257 F.R.D. 302, 311 ["The de facto attorney-client privilege applies in

situations where there is no actual attorney-client relationship, but one entity is acting like

the other entity's attorney."].) The nature and extent of such a "de facto" attorney-client

relationship is unknown. It appears to be an application of the federal joint defense or

common interest privilege described above. In any event, California does not recognize

such a de facto relationship that would support the attorney-client privilege, in the

absence of an actual attorney-client relationship.

Still other federal opinions cited by Wood and DFEH assume that defendants in

antidiscrimination cases will be represented by their own lawyers, and they focus on the

alleged inequity between those represented defendants and unrepresented complainants.

(See, e.g., EEOC v. International Profit Associates, Inc. (N.D.Ill. 2002) 206 F.R.D. 215,

219 (IPA) ["This Court expressed in oral argument . . . employers in these types of cases

have available the protection of the attorney-client privilege whereas there is no sound

reason why employees would not."]; Bauman, supra, 136 F.R.D. at pp. 461-462 ["There

is no sound reason why employers in such cases should have available the protection of

the attorney-client privilege whereas employees would not."].) This view of the equities

29
appears somewhat simplistic, given the presence of the government as a party plaintiff.

(See Clancy, supra, 39 Cal.3d at p. 746 [observing that a prosecutor has "the vast power

of the government available to him"].) But, in any event, even crediting the view of these

federal district courts, we cannot use such policy considerations to extend the attorney-

client privilege beyond its statutory bounds.

Finally, some federal opinions appear to adopt the principle that the privilege

always applies whenever a person seeks legal advice from a lawyer. (See, e.g., IPA,

supra, 206 F.R.D. at p. 218; EEOC v. Georgia-Pacific Corp. (D.Ore. Nov. 10, 1975,

No. 69-101) 1975 U.S. Dist. LEXIS 15377.) These opinions are unpersuasive because

this principle is contrary to California law, which requires an attorney-client relationship,

as discussed above. (Evid. Code, § 352; Los Angeles County, supra, 2 Cal.5th at pp. 294-

295; Gionis, supra, 9 Cal.4th at p. 1210.)

In sum, Wood has not met her burden of establishing the preliminary facts

necessary to support the privilege, i.e., "a communication made in the course of an

attorney-client relationship." (Costco, supra, 47 Cal.4th at p. 733.) Wood had no

attorney-client relationship with DFEH lawyers. They represented DFEH, not Wood, and

her discussion of legal matters with them is insufficient to create an attorney-client

30
relationship under the circumstances here. Wood has not shown the trial court erred by

ordering her to produce the email in question.5

DISPOSITION

The petition is denied. The stay ordered by the Supreme Court on October 9, 2019

is vacated. Crunch is awarded its costs. (Cal. Rules of Court, rule 8.493(a).)

GUERRERO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

O'ROURKE, J.

5 In its return, Crunch raises its own claims for relief based on other alleged trial
court errors in handling its motion to compel. We decline to consider them because
Crunch did not file its own petition for writ of mandate. Crunch may not obtain review
of the trial court's order by way of its response to Wood's writ petition. (Campbell v.
Superior Court (2005) 132 Cal.App.4th 904, 922.)
31