HOLMES v. PETROVICH DEVELOPMENT COMPANY, LLC,









Filed 1/13/11







CERTIFIED FOR PUBLICATION



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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GINA M. HOLMES, Plaintiff and Appellant, v. PETROVICH DEVELOPMENT COMPANY, LLC, et al., Defendants and Respondents.

C059133 (Super. Ct. No. 05AS04356)

APPEAL from a judgment of the Superior Court of Sacramento County, Chang, Jones, JJ. Affirmed.

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

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


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 employee files.
Petrovich also e-mailed Holmes as follows: “All I ever want is for people to be honest with me. The decision is all yours as to whether you stay here. I am NOT asking for your resignation. I do have the right to express my feelings, so I can’t help it if you feel offended if the dates and amount of time you told me you would be out on maternity leave no longer apply. I also never asked you about you [being] pregnant in our interview, so you mentioning unethical behavior is out of place. I think you are missing the whole point here. I am trying to keep my business organized and I was working off information you told me. When you disclosed, only upon me asking, that what you told me is incorrect and that you had already decided on a maternity leave date without ever informing me, I [have] the right to question [the] information and not be subject to being quoted California law or my own handbook. You obviously are well versed on all of this which speaks volumes. No, you are not fired. Yes, you are required to be straight with your employer. If you do not wish to remain employed here, I need to know immediately.”
On Monday morning, August 9, 2004, Holmes sent an e-mail to Petrovich, who was vacationing in Montana. She explained that she had thought about things a lot over the weekend and felt that what occurred on Friday could have been avoided if they had communicated in person. She enjoyed her employment and took it as a compliment that Petrovich was worried about filling her shoes in her absence. Holmes stated, “I may only be gone 6 weeks, but I don’t want to commit to that, because unforeseen circumstances can happen making my absence continue slightly longer. The max is 4 months, and that is only if there are disability issues; which I don’t anticipate in my case, but I wanted to give you the ‘outside’ number, so you wouldn’t be left with any surprises. [¶] I am happy about my pregnancy and happy about my job; I’d like to feel good about continuing to work here, in a positive and supportive environment up until my maternity leave in November, and I would like to return shortly thereafter. [¶] If we are on the same page, please let me know. I will do whatever I can to accommodate you while I’m gone; I can work from home, or come in a few hours a day; I am very flexible and hope that we will be able to work out the bumps along the way.”
Petrovich replied that he agreed with Holmes’s e-mail and saw things the way that she did. He stated, “I agree we do need to communicate. I need [to] admit I was in shock when you told me you were pregnant so soon after you started work. Right or wrong, I felt entrapped. It’s a ‘no win’ for an employer. Yes, I am happy for you, but it was building in me and I decide[d] to approach it by asking if your plans were still as represented. When everything got moved up, I felt even worse. I know I have no right to feel this way by law or as an employer, but I am human in a tough business where people are constantly trying to take advantage of me. Remember what I said about loyalty in our interview‌ The person closest to me in the office has been the person in your position. When this happened, it greatly upset me since I was hoping for the very best foundation for us since I have been pleased with your efforts and because it had been a while since I have found someone committed to do what is a tough job. It will take some time for me to ‘get over it’ but I will and I want you to stay. It will work.”
Early the next morning, August 10, 2004, Holmes replied, “Thank you Paul. I understand your feelings, you understand mine; let’s move forward in a positive direction, and remember, ‘this too shall pass’.” She then discussed some business matters, said that everyone was thinking of Petrovich and his family, and stated that “Norman and Oliver say meow and woof!”
At some point after she e-mailed Petrovich, Holmes learned that Petrovich had forwarded their e-mails regarding her pregnancy to Cheryl Petrovich, Bruce Stewart, Lisa Montagnino, and Jennifer Myers. Although she never asked Petrovich not to forward the e-mails to others, and she conceded the e-mails did not contain any language communicating that the information was to be kept private, Holmes was very upset because she “thought that it went without saying” the e-mails should not be disseminated to others.
On August 10, 2004, Holmes saw her doctor for routine obstetric care and complained about being harassed at work regarding her upcoming pregnancy disability. According to the doctor, Holmes was “moderately upset” and “somewhat tearful.” He advised her that the best course of action would be to discuss the matter directly with her boss about how she feels and remedy the situation. If the harassment continued, then she might benefit from the assistance of a lawyer.
At 3:30 p.m. on the same day that Holmes saw her doctor and had e-mailed Petrovich that they could move forward in a positive direction, Holmes used the company computer to e-mail an attorney, Joanna Mendoza. Holmes asked for a referral to an attorney specializing in labor law, specifically relating to pregnancy discrimination. When Mendoza asked what was going on, Holmes replied that her boss was making it unbearable for her. He said things that were upsetting and hurtful, and had forwarded personal e-mail about her pregnancy to others in the office. Holmes stated, “I know that there are laws that protect pregnant women from being treated differently due to their pregnancy, and now that I am officially working in a hostile environment, I feel I need to find out what rights, if any, and what options I have. I don’t want to quit my job; but how do I make the situation better.” Holmes explained that her boss had accused her of being dishonest because she underestimated her maternity leave, that he had forwarded a personal e-mail and made it ”common reading material for employees,” and that he had made her feel like an “outcast.” Holmes forwarded to Mendoza a few of Petrovich’s e-mails.
At 4:42 p.m. on the same day, Mendoza e-mailed Holmes that she should delete their attorney-client communications from her work computer because her employer might claim a right to access it. Mendoza suggested they needed to talk and, while they could talk on the phone, she “would love an excuse to see [Holmes] and catch up on everything.” Mendoza stated they could meet for lunch the next day. Holmes agreed and said she would come to Mendoza’s law office, at which time Mendoza could see her “big belly.”
On the evening of August 11, 2004, after her lunch with Mendoza, Holmes e-mailed Petrovich saying that Holmes had been upset since his first e-mail on Friday. She had been in tears, her stomach was in knots, and she realized that they would be unable “to put this issue behind us.” She stated, “I think you will understand that your feelings about my pregnancy; which you have made more than clear, leave me no alternative but to end my employment here.” Holmes advised Petrovich that she had cleared her things from her desk and would not be returning to work. Holmes also e-mailed Jennifer Myers stating that she was quitting and advising her where to send the final paycheck.
In September of 2005, Holmes filed a lawsuit against defendants, asserting causes of action for sexual harassment, retaliation, wrongful termination in violation of public policy, violation of the right to privacy, and intentional infliction of emotional distress. She alleged that the negative comments in Petrovich’s e-mails and his dissemination of her e-mails, which contained highly personal information, invaded her privacy, were intended to cause her great emotional distress, and caused her to quit her job to avoid the abusive and hostile work environment created by her employer. According to Holmes, Petrovich disseminated the e-mails to retaliate against her for inconveniencing him with her pregnancy and to cause her to quit. Holmes claimed she was constructively terminated in that continuing her employment with Petrovich “became untenable, as it would have been for any reasonable pregnant woman.”
On November 17, 2006, defendants filed a motion for summary judgment or summary adjudication on the ground that, as a matter of law, Holmes could not establish any of her causes of action. Defendants argued Holmes could not establish (1) that there was an objectively or subjectively hostile work environment; (2) that she suffered an adverse employment action in retaliation for her pregnancy; (3) that she suffered an adverse employment action that would cause a reasonable person to quit; (4) that Holmes had a reasonable expectation of privacy in her e-mails; or (5) that Petrovich’s conduct was extreme and outrageous.
The trial court granted the motion for summary adjudication as to three of the causes of action. The court ruled that, although there was evidence that Holmes subjectively perceived her workplace as hostile or abusive, there must also be evidence that the work environment was objectively offensive. “The undisputed brief, isolated, work-related exchanges between her and Mr. Petrovich, and others in the office, could not be objectively found to have been severe enough or sufficiently pervasive to alter the conditions of her employment and create a hostile or abusive work environment based upon her pregnancy.” As for Holmes’s claims for retaliation and constructive discharge, there was no evidence she experienced an adverse employment action, and no evidence from which a reasonable trier of fact could find that Petrovich “intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of [Holmes’s] resignation that a reasonable employer would realize that a reasonable person in [her] position would be compelled to resign.”
The trial court denied the motion for summary adjudication as to the causes of action for invasion of privacy and intentional infliction of emotional distress. The court ruled that, despite Holmes’s use of e-mail to communicate private information to Petrovich, and despite the company’s policy regarding the nonprivate nature of electronic communications, triable issues of fact remained regarding whether Petrovich’s dissemination of the information to other people in the office breached Holmes’s right to privacy or whether the disclosure was privileged; and that issues of fact remained concerning whether the disclosure was egregious and outrageous.
The trial of those two causes of action resulted in a defense verdict.
DISCUSSION
I
Holmes contends the trial court erred in granting defendants’ motion for summary adjudication on her causes of action for sexual harassment, retaliation, and constructive discharge.
A motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) Legal questions are considered de novo on appeal. (Unisys Corp. v. California Life & Health Ins. Guarantee Assn. (1988) 63 Cal.App.4th 634, 637.) However, we must presume the judgment is correct, and the appellant bears the burden of demonstrating error. (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443.)
Viewing Holmes’s specific contentions within the context of the appropriate legal framework, we find no error.
A
First, Holmes contends the trial court erred in granting summary adjudication with respect to her cause of action for sexual harassment.
The Fair Employment and Housing Act (FEHA) makes it an unlawful employment practice for an employer, “because of . . . sex, . . . to harass an employee.” (Gov. Code, § 12940, subd. (j)(1).) Under FEHA, “‘harassment’ because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions.” (Gov. Code, § 12940, subd. (j)(4)(C).)
There are two theories upon which sexual harassment may be alleged: quid pro quo harassment, where a term of employment is conditioned upon submission to unwelcome sexual advances; and hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment. (Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1414.) Holmes pursued the latter.
To prevail on a claim of hostile work environment sexual harassment, an employee must demonstrate that he or she was subjected to sexual advances, conduct, or comments that were (1) unwelcome, (2) because of sex, and (3) sufficiently severe or pervasive to alter the conditions of his or her employment and create an abusive work environment. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 279 (hereafter Lyle).)
“‘“[W]hether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances [including] the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” [Citation.]’ [Citation.] Therefore, to establish liability in a FEHA hostile work environment sexual harassment case, a plaintiff employee must show she was subjected to sexual advances, conduct, or comments that were severe enough or sufficiently pervasive to alter the conditions of her employment and create a hostile or abusive work environment.” (Lyle, supra, 38 Cal.4th at p. 283; original italics.) “With respect to the pervasiveness of harassment, courts have held an employee generally cannot recover for harassment that is occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature.” (Ibid.)
“To be actionable, ‘a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.’ [Citations.] That means a plaintiff who subjectively perceives the workplace as hostile or abusive will not prevail under the FEHA, if a reasonable person in the plaintiff’s position, considering all the circumstances, would not share the same perception. Likewise, a plaintiff who does not perceive the workplace as hostile or abusive will not prevail, even if it objectively is so.” (Lyle, supra, 38 Cal.4th at p. 284; italics added.)
Relying on Lyle, the trial court found that, although Holmes subjectively perceived her workplace as hostile, it was not an abusive environment from an objective standpoint as a matter of law. Holmes claims the trial court erred in relying on Lyle because the facts in that case are distinguishable. But the trial court did not grant Petrovich’s motion based on a factual comparison to Lyle; it simply used the standard of review established therein as it was required to do, and as are we, under principles of stare decisis. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara (1962) 57 Cal.2d 450, 455.)
Holmes contends the proper standard in sexual harassment cases is whether a reasonable woman would consider the work environment a hostile one and, hence, the standard in pregnancy discrimination cases should be whether a reasonable pregnant woman would consider her work environment hostile. Thus, Holmes asserts, “Unless there was undisputed evidence that [she] was an unreasonable pregnant woman, it is oxymoronic that the lower court found the conduct at issue subjectively offensive but not ‘objectively’ offensive to a reasonable pregnant woman in [her] position. . . . Quite frankly, the issue of ‘objectively offensive conduct’ should have been left to the trier of fact and not been a question of law for the judge to have decided, especially if it was clear that there was subjective offense and highly questionable conduct at issue.” (Original italics.)
Holmes’s argument is not persuasive. An evaluation of all the circumstances surrounding Holmes’s employment discloses an absence of evidence from which a reasonable jury could objectively find that Petrovich created a hostile work environment for a reasonable pregnant woman. During the two months Holmes worked for Petrovich, there was no severe misconduct or pervasive pattern of harassment. Holmes claims that her coworkers treated her differently based upon her pregnancy by asking about her maternity leave, but she admits that, when she asked them to stop, they complied.
Holmes points to the e-mails she exchanged with Petrovich on August 6 and 9, 2004, in which he implied she had deceived him about her pregnancy, stated he was offended that she had changed the period of time she would be absent for maternity leave, and asserted that her pregnancy was an extreme hardship on his business. She also complains that Petrovich unnecessarily forwarded to others her e-mail containing personal information about her age, prior miscarriages, and the possibility she would have terminated her pregnancy if the amniocentesis results had revealed problems with the fetus. Holmes asserts that Petrovich did this to humiliate her. Petrovich said he sent the e-mails to in-house counsel and employees involved in human relations because he thought that Holmes was about to quit.
When viewed in context, the e-mails (set forth at length, ante) show nothing more than that Petrovich made some critical comments due to the stress of being a small business owner who must accommodate a pregnant woman’s right to maternity leave. He recognized Holmes’s legal rights, stated he would honor them, said he was not asking for her resignation, noted he had been pleased with her work, and simply expressed his feelings as a “human in a tough business where people are constantly trying to take advantage of me.” He assured Holmes that “it will work.” Rather than giving him a chance to honor his promise, Holmes quit.
It appears Holmes expects FEHA to be a civility code. It is not. (Lyle, supra, 38 Cal.4th at p. 295.) As we stated above, there is no recovery for harassment that is occasional, isolated, sporadic, or trivial. (Id. at p. 283.) Rather, a plaintiff must show a concerted pattern of harassment that is repeated, routine, or generalized in nature. (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 142.) Holmes failed to do so. The isolated incidents to which she points are objectively insufficient.
Holmes relies on three cases for the proposition that harassment need not be pervasive and may be established by only a few instances of conduct over a short period of time. She fails to recognize that harassment need not be pervasive if it is sufficiently severe enough to alter the conditions of employment. (Lyle, supra, 38 Cal.4th at p. 283 [the plaintiff must be subjected to conduct or comments severe enough or sufficiently pervasive to alter the conditions of her employment and create a hostile work environment].) The cases upon which Holmes relies are not remotely similar to her situation in that they all involve egregious and severe conduct that unquestionably was abusive. In Hostetler v. Quality Dining, Inc. (7th Cir. 2000) 218 F.3d 798, the plaintiff’s harasser engaged in three incidents over a one-week period of time: (1) he forced his tongue into her mouth, (2) he attempted to kiss her again and to remove her bra, and (3) he told her that he could perform oral sex so effectively he could make her do cartwheels. (Id. at pp. 802, 807-808.) In Erdmann v. Tranquility Inc. (N.D.Cal. 2001) 155 F.Supp.2d 1152, a homosexual employee’s boss insisted that the employee become heterosexual, convert to the employer’s Mormon faith, and lead the company’s prayer service. (Id. at pp. 1160-1161.) And in Mayfield v. Trevors Store, Inc. (N.D.Cal., Dec. 6, 2004, No. C-04-1483 MHP) 2004 WL 2806175, the employer not only made comments that made the plaintiff feel stigmatized due to her pregnancy, the employer also wrote negative performance evaluations, assigned the plaintiff large amounts of extra work, and denied her a sick day.
Petrovich did not engage in any similarly egregious conduct, and he provided a nondiscriminatory explanation for his conduct. Because Holmes produced no evidence from which a reasonable jury could infer the existence of a hostile work environment, the trial court correctly granted the motion for summary adjudication on this cause of action.



TO BE CONTINUED AS PART II….

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