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)
----

GINA M. HOLMES, Plaintiff and Appellant, v. PETROVICH DEVELOPMENT COMPANY, LLC, et al., Defendants and Respondents.

C059133 (Super. Ct. No. 05AS04356)

STORY CONTINUE FROM PART I….

B
Next, Holmes contends the court erred in granting the motion for summary adjudication on her cause of action for constructive discharge. According to Holmes, she “found the extreme stress associated with being out of work to be preferable to the treatment she was receiving at Petrovich.” This claim fares no better than her last.
“Constructive discharge occurs only when the employer coerces the employee’s resignation, either by creating working conditions that are intolerable under an objective standard, or by failing to remedy objectively intolerable working conditions that actually are known to the employer.” (Mullins v. Rockwell Internat. Corp. (1997) 15 Cal.4th 731, 737.) The conditions prompting resignation must be “sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1246 (hereafter Turner), disapproved on other grounds by Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479.) The resignation must be coerced, not merely a rational option chosen by the employee. (Id. at p. 1247.)
From an objective standpoint, the trial court correctly granted summary adjudication. “Where a plaintiff fails to demonstrate the severe or pervasive harassment necessary to support a hostile work environment claim, it will be impossible for her to meet the higher standard of constructive discharge: conditions so intolerable that a reasonable person would leave the job.” (Brooks v. City of San Mateo (9th Cir. 2000) 229 F.3d 917, 930.) As discussed above, Holmes failed to present sufficient evidence of a hostile work environment. Thus, her wrongful termination claim necessarily fails. (Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1381 (hereafter Jones).)
C
The trial court also granted summary adjudication on Holmes’s cause of action for retaliation, ruling there was no evidence of an adverse employment action by Petrovich. We agree.
Holmes argues that she was subjected to negative comments and accusations about her pregnancy, followed by Petrovich’s retaliatory conduct when she told him she planned to exercise her leave rights; he retaliated by forwarding her sensitive personal information to others in the office, who had no reason to know about her prior miscarriages, amniocentesis, and potential termination of her pregnancy.
This is insufficient to establish an adverse employment action by Petrovich.
An “adverse employment action,” which is a critical component of a retaliation claim (Jones, supra, 152 Cal.App.4th at p. 1380), requires a “substantial adverse change in the terms and conditions of the plaintiff’s employment.” (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1454, 1455.) “‘[A] mere offensive utterance or . . . a pattern of social slights by either the employer or coemployees cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment for purposes of [the FEHA] . . . .’” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054 (hereafter Yanowitz).) “However, a series of alleged discriminatory acts must be considered collectively rather than individually in determining whether the overall employment action is adverse [citations] and, in the end, the determination of whether there was an adverse employment action is made on a case-by-case basis, in light of the objective evidence.” (Jones, supra, 152 Cal.App.4th at p. 1381.)
Here, Petrovich did not reduce Holmes’s salary, benefits or work hours, and did not terminate her. He assured Holmes that she still had a job and that they would work things out. Holmes chose to quit because Petrovich expressed his concerns about the changes in her pregnancy leave dates and the need to replace her while she was on leave, and because he forwarded an e-mail that she wished to keep private. But she failed to demonstrate there was a triable issue of fact concerning whether he did these things to retaliate against her; she simply concluded that this was his motivation by taking out of context certain comments that he made. Holmes overlooks her own evidence, submitted in opposition to defendants’ motion, which demonstrated that Petrovich forwarded the e-mail only to people he believed needed to know that Holmes had changed the anticipated date of her pregnancy leave and that she might be quitting. The fact that he forwarded her entire e-mail, rather than editing it or drafting a new one, does not demonstrate any animus toward her, given there was no clear directive in her e-mail that she did not wish others to see it.
More importantly, “[m]inor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable . . . .” (Yanowitz, supra, 36 Cal.4th at p. 1054.) That is what occurred here. A reasonable person would have talked to Petrovich, expressed dismay at his actions, given him an opportunity to explain or apologize, and waited to see if conditions changed after the air had cleared. Instead, Holmes chose to quit despite Petrovich’s assurances that he wanted her to stay and that things would work out.
For the reasons stated above, the trial court correctly granted defendants’ motion for summary adjudication.^[1]


II
Holmes’s remaining claims of error all arise from an alleged violation of her attorney-client privilege.
She contends the trial court abused its discretion in (1) denying her motion demanding the return of privileged documents, (2) permitting the introduction of the documents at trial, and (3) giving a limiting instruction that undermined her cause of action for invasion of privacy. She argues that the cumulative prejudicial effect of these errors requires reversal of the judgment.
Her arguments are premised on various statutes governing the attorney-client privilege as follows:
Evidence Code section 954 states in relevant part: “Subject to Section 912 and except as otherwise provided in this article, the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer . . . .” (Further section references are to the Evidence Code unless otherwise specified.)
Section 952 provides that a “confidential communication between client and lawyer” is “information transmitted between a client and his or her lawyer in the course of that relationship and 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 . . . .” (§ 952.)
Section 917 states in relevant part: “(a) If a privilege is claimed on the ground that the matter sought to be disclosed is a communication made in confidence in the course of the lawyer-client . . . relationship, 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 that the communication was not confidential. [¶] (b) A 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. . . .”
Section 912, subdivision (a) provides that the right of any person to claim a lawyer-client privilege “is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has the legal standing and opportunity to claim the privilege.”
With this statutory framework in mind, we turn to Holmes’s specific contentions.
A
Holmes argues the trial court erred in denying her motion for discovery sanctions, seeking return of the e-mails that she sent her attorney, Joanna Mendoza, using the company’s computer. We disagree.
During a deposition, defense counsel questioned Holmes about her e-mail correspondence with her attorney. Mendoza objected on the ground of attorney-client privilege.
Mendoza then wrote to defense counsel, Kevin Iams, demanded the return of the e-mails, and said she would seek a protective order if he refused. Iams replied that Holmes made a knowing waiver of the privilege when she communicated with counsel on the company’s e-mail system after being advised that her e-mails were not private. Nevertheless, Iams wrote, “I recognize that this is not an area in which the law is settled. . . . What I propose as a resolution is a stipulated protective order whereby I and my clients will agree that we will not use the emails or facsimile copies in any deposition or court proceeding, unless we provide you written notice 45 days in advance. This will allow us further time to meet and confer, obtain a further protective order, or if necessary, to seek the court’s intervention.”
Mendoza initially refused the proposed resolution, but then agreed. On May 15, 2006, Iams wrote a confirmation letter stating that Mendoza agreed to delay filing for a protective order pending a review of the “proposed protective order” that Iams would draft, wherein he would agree not to use the documents in any deposition or court proceeding without first giving Mendoza 45 days’ written notice. The letter noted, however, that “by entering into the protective order, neither side is waiving any arguments it may have regarding the appropriate use of the [e-mails].” Stating that his schedule that week was hectic, Iams said he would strive to have a draft of the protective order to Mendoza by the end of the week for her review.
Before Iams drafted the stipulated protective order, Attorney Robin Perkins substituted in as defendants’ counsel. Thereafter, Perkins used the e-mails in support of defendants’ motion for summary judgment.
Holmes demanded that defendants withdraw the e-mail evidence, in accord with their agreement not to use it without prior notice. She submitted a declaration objecting to use of the attorney-client e-mails, claiming they were privileged.
Responding that the parties had never agreed not to utilize the e-mails, and that no protective order had ever been executed, defendants objected to Holmes’s declaration that the e-mails were privileged. In defendants’ view, the declaration was improper lay opinion, and Holmes had waived the attorney-client privilege. They pointed out that Holmes’s counsel specifically permitted defendants’ counsel to ask questions concerning the e-mails, stating: “If the only extent of your questions are going to be about this e-mail exchange, and you’re not going to go into a follow-up meeting that was had or any other communications with her attorney, and it’s not going to be considered a waiver of any of those communications, then I have no problem with it.” (Italics added.)
The trial court sustained defendants’ objections and did not exclude the e-mail evidence.
Thereafter, Holmes sought discovery sanctions for defendants’ failure to return the e-mails and for violating the agreement not to use them without affording Holmes prior notice.
Defendants opposed the motion on the grounds that the parties never reached a written stipulation; Holmes never filed a motion to compel, which meant the court had never ordered Petrovich to return the documents; and the court had already found that the use of the e-mails did not violate the attorney-client privilege.
The court denied the motion for discovery sanctions, finding defendants had not engaged in any discovery abuse. It explained: “With respect to the e-mails that were submitted by defendants with the motion for summary judgment/adjudication, the Court found plaintiff had waived attorney-client privilege . . . .”
Holmes contests this ruling, asserting “no specific finding of waiver was made” in connection with the motion for summary judgment because defendants’ objections to the claim of attorney-client privilege were made on multiple grounds, and the court merely sustained the objection without specifying the basis for its ruling. Thus, she argues, the court erred in relying on a nonexistent finding of waiver to deny the discovery sanctions motion.
Holmes overlooks that Judge Shelleyanne Chang presided over both the motion for summary judgment and/or adjudication and the motion for discovery sanctions. We presume that Judge Chang knew the basis for her own ruling sustaining defendants’ objections in the first proceeding. Hence, Judge Chang did not err in relying on her prior determination that Holmes waived the attorney-client privilege. Furthermore, as we shall explain in the next section of the opinion, the e-mails were not privileged.

B
Holmes asserts the court erred in overruling her motion in limine to prevent defendants from introducing the aforementioned e-mails at trial to show Holmes did not suffer severe emotional distress, was only frustrated and annoyed, and filed the action at the urging of her attorney.
The court ruled that Holmes’s e-mails using defendants’ company computer were not protected by the attorney-client privilege because they were not private.
Holmes argues that the court did not understand the proper application of section 917, and thus erred in allowing introduction of the e-mail evidence. According to Holmes, “the California Legislature has already deemed [the fact that a communication was made electronically] to be irrelevant in determining whether a communication is confidential and therefore privileged.” However, it is Holmes, not the trial court, who misunderstands the proper application of section 917.
Although a communication between persons in an attorney-client relationship “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” (§ 917, subd. (b)), this does not mean that an electronic communication is privileged (1) when the electronic means used belongs to the defendant; (2) the defendant has advised the plaintiff that communications using electronic means are not private, may be monitored, and may be used only for business purposes; and (3) the plaintiff is aware of and agrees to these conditions. A communication under these circumstances is not a “‘confidential communication between client and lawyer’” within the meaning of section 952 because it is not transmitted “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 . . . .” (Ibid.)
When Holmes e-mailed her attorney, she did not use her home computer to which some unknown persons involved in the delivery, facilitation, or storage may have access. Had she done so, that would have been a privileged communication unless Holmes allowed others to have access to her e-mails and disclosed their content. Instead, she used defendants’ computer, after being expressly advised this was a means that was not private and was accessible by Petrovich, the very person about whom Holmes contacted her lawyer and whom Holmes sued. This is akin to consulting her attorney in one of defendants’ conference rooms, in a loud voice, with the door open, yet unreasonably expecting that the conversation overheard by Petrovich would be privileged.
Holmes disagrees, but the decisions upon which she relies are of no assistance to her because they involve inapposite factual circumstances, such as Fourth Amendment searches and seizures by public or government employers (Quon v. Arch Wireless Operating Co., Inc. (9th Cir. 2008) 529 F.3d 892 (hereafter Quon), reversed by City of Ontario v. Quon (2010) ___ U.S. ___ [177 L.Ed.2d 216, 231]; Leventhal v. Knapek (2d Cir. 2001) 266 F.3d 64; Convertino v. U.S. Dept. of Justice (D.C. 2009) 674 F.Supp.2d 97, 110), or the use of a personal web-based e-mail account accessed from an employer’s computer where the use of such an account was not clearly covered by the company’s policy and the e-mails contained a standard hallmark warning that the communications were personal, confidential, attorney-client communications. (Stengart v. Loving Care Agency, Inc. (N.J. 2010) 990 A.2d 650, 659, 663-664.)
The present case does not involve similar scenarios. Holmes used her employer’s company e-mail account after being warned that it was to be used only for company business, that e-mails were not private, and that the company would randomly and periodically monitor its technology resources to ensure compliance with the policy. (Cf. Scott v. Beth Israel Med. Center, Inc. (2007) 847 N.Y.S.2d 436, 441-443 [despite a statute similar to section 917, an attorney-client privilege did not exist when a company computer was used to send e-mails, and the company’s policy prohibited the personal use of e-mails, warned that they were not private, and stated that they could be monitored].)^[2]
Holmes emphasizes that she believed her personal e-mail would be private because she utilized a private password to use the company computer and she deleted the e-mails after they were sent. However, her belief was unreasonable because she was warned that the company would monitor e-mail to ensure employees were complying with office policy not to use company computers for personal matters, and she was told that she had no expectation of privacy in any messages she sent via the company computer. Likewise, simply because she “held onto a copy of the fax,” she had no expectation of privacy in documents she sent to her attorney using the company’s facsimile machine, a technology resource that, she was told, would be monitored for compliance with company policy not to use it for personal matters.
According to Holmes, even though the company unequivocally informed her that employees who use the company’s computers to send personal e-mail have “no right of privacy” in the information sent (because the company would periodically inspect all e-mail to ensure compliance with its policy against personal use of company computers), she nonetheless had a reasonable expectation that her personal e-mail to her attorney would be private because the “‘operational reality’ was that there was no access or auditing of employee’s computers.” (Citing Quon, supra, 529 F.3d 892, reversed by City of Ontario v. Quon, supra, ___ U.S. at p. ____ [177 L.Ed.2d at p. 231].)
In support of this contention, Holmes claims she “knew that her computer was password protected and that no one had asked for or knew her password, and the only person who had the ability to inspect the computers did not ever perform that task.” This misrepresents the record in two respects. It is inaccurate to say only one person had the ability to monitor e-mail sent and received on company computers. The company’s controller, who had an administrative password giving her access to all e-mail sent by employees with private passwords, testified that the company’s “IT person” as well as company owner Cheryl Petrovich also had such access to e-mail sent and received by company computers. And at no time during her testimony did Holmes claim she knew for a fact that, contrary to its stated policy, the company never actually monitored computer e-mail. She simply said that, to her knowledge, no one did so.
In any event, Holmes’s reliance on Quon is misplaced. There, a police sergeant, Jeff Quon, sued his employer, the Ontario Police Department, claiming it violated his Fourth Amendment right to be free of unlawful government searches and seizures when it reviewed text messages that he sent on an employer-issued text pager. (Quon, supra, 529 F.3d at p. 895.) In holding that Quon had a reasonable expectation of privacy in his text messages due to the operational realities of the workplace, the Ninth Circuit relied in large part on the plurality opinion in O'Connor v. Ortega (1987) 480 U.S. 709 [94 L.Ed.2d 714] (hereafter O’Connor). (Quon, supra, 529 F.3d at pp. 903-904, 907.)
O’Connor held that the fact an employee works for the government does not negate the employee’s Fourth Amendment right to be free of unreasonable governmental searches and seizures at work. (O'Connor, supra, 480 U.S. at pp. 715, 717 [94 L.Ed.2d at pp. 721, 723].) But “[t]he operational realities of the workplace . . . may make some employees’ expectations of privacy unreasonable.” (Id. at p. 717 [94 L.Ed.2d at p. 723].) For example, the existence of specific office policies, practices, and procedures may have an effect on public employees’ expectations of privacy in their workplace. (Ibid.) “Given the great variety of work environments in the public sector, the question whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis.” (Id. at p. 718 [94 L.Ed.2d at p. 723].)
Relying on O’Connor, the Ninth Circuit upheld the district court’s determination that Quon had a reasonable expectation of privacy in his text messages because, despite a departmental policy that users of pagers had no right to privacy, the operational reality was that Quon was given an expressly conflicting message to the contrary by his supervisor. (Quon, supra, 529 F.3d at p. 907.) In addition to finding Quon had a reasonable expectation of privacy, the Ninth Circuit found the search was unreasonable in violation of the Fourth Amendment. (Id. at pp. 908-909.)
The United States Supreme Court reversed this decision on the ground the search was not unreasonable. (City of Ontario v. Quon, supra, ___ U.S. at p. ____ [177 L.Ed.2d at pp. 229-231].) Before turning to that issue, it noted that the parties disputed whether Quon had a reasonable expectation of privacy with respect to his pager messages. (Id. at p. ___ [177 L.Ed.2d at p. 226].) Opting not to resolve this issue or whether the O’Connor “operational reality” test was applicable, the court observed that it “must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.” (Id. at p. ___ [177 L.Ed.2d at pp. 226-227].) “Even if the Court were certain that the O'Connor plurality’s approach were the right one, the Court would have difficulty predicting how employees’ privacy expectations will be shaped by those changes or the degree to which society will be prepared to recognize those expectations as reasonable. . . . And employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated. (Id. at p. ___ [177 L.Ed.2d at p. 227].)
Here, we are not concerned with a potential Fourth Amendment violation because Holmes was not a government employee. And, even assuming the “operational reality” test applies, it is of no avail to Holmes because the company explicitly told employees that they did not have a right to privacy in personal e-mail sent by company computers, which e-mail the company could inspect at any time at its discretion, and the company never conveyed a conflicting policy. Absent a company communication to employees explicitly contradicting the company’s warning to them that company computers are monitored to make sure employees are not using them to send personal e-mail, it is immaterial that the “operational reality” is the company does not actually do so. Just as it is unreasonable to say a person has a legitimate expectation that he or she can exceed with absolute impunity a posted speed limit on a lonely public roadway simply because the roadway is seldom patrolled, it was unreasonable for Holmes to believe that her personal e-mail sent by company computer was private simply because, to her knowledge, the company had never enforced its computer monitoring policy.
In sum, “so far as [Holmes was] aware,” within the meaning of section 952, the company computer was not a means by which to communicate in confidence any information to her attorney. The company’s computer use policy made this clear, and Holmes had no legitimate reason to believe otherwise, regardless of whether the company actually monitored employee e-mail. Thus, when, with knowledge of her employer’s computer monitoring policy, Holmes used a company computer to e-mail her attorney about an employment action against her boss, Petrovich, Holmes in effect knowingly disclosed this information to a third party, the company and thus Petrovich, who certainly was not involved in furthering Holmes’s interests in her consultation with her attorney (§ 952) because Petrovich was the party she eventually sued.
Hence, the trial court correctly ruled that the attorney-client communication was not privileged. (§ 952.)
C
According to Holmes, the trial court erred when it gave the jury a protective admonishment about the attorney-client e-mails.
The court stated: “Jury, normally you may be shocked to see something like this on screen. However, I determined in proceedings prior to trial that this was not privileged information between an attorney and a client because it was communicated through company computers.” When Holmes’s attorney began to object, the court responded, “the jury needs to understand that we are not romping wholesale over the attorney/client privilege. And I don’t want the jury to be offended by this type of correspondence.”
After an unreported sidebar conference, the court stated: “I think I’ve made it clear to you [the jurors] why you’re being permitted to see this kind of unusual correspondence, and the only reason you’re able to see it is for the reasons I expressed earlier, namely that it was correspondence on a company computer, but that has nothing whatsoever to do with Miss Holmes’ claim of privacy with respect to the pregnancy issues she communicated to Mr. Petrovich and her claims of emotional distress from that. [¶] So don’t take my comments as any kind of indication how you should decide the merits of this case based upon this attorney/client communication. It’s a very, very different issue. [¶] But I felt you should know why I’m permitting you to see this, because it’s a very unusual kind of correspondence between a client and an attorney that normally juries would not see, but you’re seeing it for that very limited purpose, but consider it only for the very limited purpose . . . and don’t attach any importance to it on the main claim of Miss Holmes against [Petrovich].”
Holmes argues the above-quoted comments undermined her invasion of privacy claim by more or less advising the jury she had no right to privacy in e-mails on a company computer. Not so.
The causes of action for invasion of privacy and intentional infliction of emotional distress were not premised on Petrovich accessing Holmes’s attorney-client e-mails, but on his forwarding to her coworkers her private e-mails to him about her pregnancy. She claimed that this dissemination of intimate details concerning her pregnancy violated her right to privacy, that Petrovich’s conduct was outrageous, and that it caused Holmes great emotional distress.
The court unambiguously advised the jury that Holmes’s e-mails to her attorney were being introduced for a limited purpose, and the court’s determination that they were not privileged because they were sent on a company computer had “nothing whatsoever to do with [her] claim of privacy” and her claims of emotional distress. Then, in response to jury questions during deliberations, the court advised the jury that an electronic data transmission may constitute an invasion of privacy if the elements of the tort are established by a preponderance of the evidence,^[3] and that policies in an employer handbook could not supersede California law.
Holmes points to nothing indicating that the court’s comments were a misstatement of the evidence or law. Unlike Lewis v. Bill Robertson & Sons, Inc. (1984) 162 Cal.App.3d 650, upon which Holmes relies, the court did not commit misconduct and engage in partisan advocacy by expressing strong opinions on the ultimate issue at trial (id. at pp. 656-657), i.e., whether Petrovich invaded her right to privacy by forwarding to Holmes’s coworkers the e-mails about her pregnancy. Under the circumstances, she has failed to meet her burden of establishing error. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [it is the appellants’ burden to establish error with reasoned argument and citations to authority].)
Holmes also fails to meet her burden of establishing that the alleged error was prejudicial. (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337 [an appellant bears the burden of establishing prejudice by spelling out in his or her brief exactly how an alleged error caused a miscarriage of justice]; American Drug Stores, Inc. v. Stroh, supra, 10 Cal.App.4th at p. 1453 [appellants may not attempt to rectify their omissions and oversights for the first time in their reply briefs].) Holmes does not present a coherent argument explaining how the court’s statement that her e-mails to her attorney were not privileged undermined her theory that Petrovich egregiously violated her privacy by forwarding e-mails about her difficult and sensitive pregnancy decisions to people she claimed had no legitimate business need to know about the matters discussed therein. Thus, Holmes fails to demonstrate that, but for the court’s alleged errors, it is reasonably probable the jury would have returned a more favorable verdict. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 801-802.)
III
In her reply brief, Holmes attempts to raise a new argument challenging the jury’s verdict on her cause of action for invasion of privacy. The argument is entitled, “ONE DOES NOT LOSE THEIR [sic] CONSTITUTIONAL RIGHT TO PRIVACY SIMPLY BY WALKING THROUGH THE ENTRANCE OF THE WORKPLACE.”
She asserts that an employer cannot destroy the constitutional right to privacy via a company handbook without due consideration being paid; that an employee has a reasonable expectation of privacy when an employer’s technology policy is not enforced; and that an employer violates an employee’s right to privacy when he discloses private information about the employee without a legitimate business reason for doing so.
We decline to address this argument because it is raised for the first time in her reply brief and is thus forfeited. (Garcia v. McCutchen, supra, 16 Cal.4th at p. 482, fn. 10; Reichardt v. Hoffman, supra, 52 Cal.App.4th at pp. 764-765; American Drug Stores, Inc. v. Stroh, supra, 10 Cal.App.4th at p. 1453.)
DISPOSITION
The judgment is affirmed.


SCOTLAND , J.*

We concur:



HULL , Acting P.J.



BUTZ , J.






* 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.




Publication courtesy of California pro bono legal advice.
Analysis and review provided by La Mesa Property line attorney.
San Diego Case Information provided by www.fearnotlaw.com

---