Redeker v. Collateral Specialists

 

 

 

 

 

 

 

 

 

 

 

 

 

Filed 11/4/13  Redeker v. Collateral Specialists CA1/4

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California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

FIRST
APPELLATE DISTRICT

 

DIVISION
FOUR

 

 
>

JAMES A. REDEKER,             Plaintiff and Appellant, v. COLLATERAL SPECIALISTS INC.,             Defendant and Respondent.

A136291         (Marin County       Super. Ct. No. CIV1100779)

 

            Plaintiff
James A. Redeker brought this case against his former employer, Collateral
Specialists Inc. (CSI), for wrongful
termination in violation of public policy and Labor Code section 1102.5,
unfair business practices, and invasion of privacy.  In this appeal, he challenges the trial
court’s order granting CSI summary judgment. 
We affirm summary adjudication
of Redeker’s claim for invasion of privacy, but we reverse summary adjudication
of his other three claims.

I.

Factual and Procedural

Background

            CSI provides services to banks and
other lenders by inspecting collateral used to secure loans.  The inspections are performed by field
representatives, whom CSI classifies as independent contractors.  Beginning in December 2007, CSI employed Redeker
as Operations Manager, and his duties included assigning work to field
representatives.  Redeker reported to
Kevin Power, CSI’s Vice President of Operations.  James Jennings (J. Jennings) was
President of CSI and co-owned the company with Brian Jennings (B. Jennings),
the Executive Vice President.

            Redeker
came to believe that CSI’s classification of the field representatives as
independent contractors, rather than employees, might be wrong.  In November 2009, he met with Power and J. Jennings
to discuss his concern.  The meeting’s
participants recall the event differently. 
J. Jennings testified that he told Redeker CSI was aware of various
state laws governing employee classification, that CSI made every effort to comply
with those laws, and that an IRS audit had confirmed CSI was properly
classifying the field representatives.  J. Jennings and Power testified that they
left the meeting believing Redeker’s concerns had been resolved.  According to Redeker, however, J. Jennings
acknowledged that CSI’s compliance was questionable and stated that
reclassifying the field representatives as employees would be too expensive.  J. Jennings said that CSI was legally protected,
notwithstanding the company’s questionable compliance, because the field
representatives contractually agreed to be independent contractors and CSI
exploited “loopholes” in state laws.  In
the month following the meeting, Redeker received a pay raise.

            Redeker
continued to spend time on the classification issue.  On January 26, 2010, he wrote a long e-mail
to Power memorializing his version of the November meeting.  In it, he stated that he had further
researched the classification issue and had contacted officials in three states
to discuss CSI’s compliance.  He also urged
CSI to research state laws further to ensure that it was acting legally.  Redeker conveyed his concerns to CSI’s outside
counsel, Gabriel Levine.

            Power
found the January 26 e-mail to be “really negative” and “kind of shocking,” since
he had believed the issue was resolved.  Upon
receiving the e-mail, he forwarded it to the Jenningses, who decided to review Redeker’s
other e-mails on the corporate servers.

            In
reviewing Redeker’s e-mails, CSI discovered that Redeker had forwarded an
electronic file containing a list of CSI’s field representatives (the
field-representatives file) from his work e-mail account to his personal e-mail
account in early January.  CSI considered
the list of field representatives important and confidential:  J. Jennings testified that it was one of
CSI’s “two most prized possessions,” along with the company’s customer list.  In a confidentiality agreement that Redeker
had signed after CSI hired him, he agreed to “not, except in performing [his]
duties, remove or copy any confidential information or
materials . . . without [CSI]’s written permission.”

            Redeker
had obtained the field-representatives file in December 2009 while he was
working on a different project he had undertaken without CSI’s direction or
permission.  In that project, Redeker
used the file to check the names of field representatives against names in publicly
available sex-offender databases.  The
field-representatives file had been sent to Redeker at his request by CSI’s information
technology manager.  The day he received
the file, Redeker and another employee, Lynda Harrison, began checking the
names on the list against names in the sex-offender databases.  Later that day, Redeker e-mailed Power, who
was on vacation, to notify him that the search had resulted in three matches.

            On
January 5, after Power had returned from vacation, Redeker again e-mailed Power
to tell him that there were three matches with about half the list
checked.  The next day, at 8:27 a.m., Redeker
e-mailed Power again and asked whether Redeker and Harrison should keep
checking to finish the list.  In that e-mail,
Redeker noted that CSI had deactivated one of the three field representatives
whose names were included in the sex-offender databases, but that the other two
continued to receive assignments.

            At
10:51 a.m., Power responded, “Let’s hold off until I have discussed the
situation with the Jennings [sic].  I’ll get back to you next week.”  The parties agree that Power and Redeker then had
a conversation about the project later the same day, but they disagree about what
was said.  Power says he told Redeker to
stop the search.  Redeker says that Power
agreed to let him work on the project at home that evening.

            At
4:00 p.m., Redeker e-mailed Power again. 
He thanked Power “for handling these very sensitive issues with others
in CSI’s senior management team.”  He
also wrote, “I recognize the need to discuss and fully evaluate at the
appropriate time the critical business issue of background checking, but why
would CSI not want to immediately deactivate the other two reps who we’re
pretty sure are convicted criminals?”  He
expressed concern that CSI was still sending the remaining two field
representatives out on jobs, although he recognized that it was Power’s
decision to make.  At 4:47 p.m., Redeker e-mailed
the field-representatives file to his personal e-mail account.

            The
next morning, on January 7, Power responded to Redeker’s 4:00 p.m. e-mail from
the previous day:  “I agree, I actually
spoke to [the Jenningses] yesterday and Brian will be deactivating these reps
today . . . .  I have
spoken to [Harrison] and she will continue checking the remainder of our
reps.  We will be doing a search on all
newly added reps and we will set up an annual process as well.  [¶]  Thank you for your efforts,
they are greatly appreciated.”

            The
review of Redeker’s e-mails revealed two other notable exchanges.  In the first, Redeker told a new employee that
“CSI isn’t concerned that it provides sex offender convicted felons to work for
customers,” citing the fact that only one of the three field representatives whose
names were included in the sex-offender databases had been deactivated.  In the second, Redeker sent Harrison a link
to a book excerpt “about the Death Spiral and weakening of the organizational
immune system,” asking that she “let [him] know if [she had] ever seen such
anywhere in real life.”  Both Jenningses
testified that these e-mails actually played little, if any, role in the
decision to terminate Redeker.

            On
the morning of March 15, 2010, Redeker used his CSI computer to send an e-mail from
his personal account to his own attorney, seeking advice about the
classification issue and expressing concern about possible retaliation.  Later that day, his employment with CSI was terminated.
 The termination letter stated that the
reasons for termination “include[d Redeker]’s disparagement of [CSI] to other
employees, and [his] removal of highly confidential and proprietary information
from company property without permission, in violation of [CSI’s] policies and
[his] Confidentiality Agreement.”

            Redeker
brought suit against CSI.  CSI moved for
summary judgment or, in the alternative, summary adjudication of his
claims.  The trial court granted CSI’s
motion for summary judgment on all claims, and Redeker timely appealed.

II.

Discussion

            A.         Standard of Review.

            In this appeal, Redeker challenges
the summary judgment entered against him. 
The standard for reviewing a grant of summary judgment is well-established.  Summary judgment is appropriate if “there is
no triable issue as to any material fact and . . . the moving
party is entitled to judgment as a matter
of law.”  (Code Civ. Proc., § 437c,
subd. (c).)  Our review of the
record is de novo.  (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.)  We “liberally constru[e] the evidence,”
including drawing all reasonable inferences from it, in favor of the nonmoving
party, and “resolv[e] doubts concerning the evidence” in that party’s favor as
well.  (Id. at pp. 460, 470.)  We are
also mindful that “many employment cases present issues of intent, and motive, . . .
issues not determinable on paper.  Such
cases . . . are rarely appropriate for disposition on summary
judgment.”  (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 286.)  “If summary judgment was properly granted on
any ground,” however, “we must affirm regardless of whether the court’s
reasoning was correct.”  (>Jackson v. Ryder Truck Rental, Inc.
(1993) 16 Cal.App.4th 1830, 1836.)

>            B.         Summary Adjudication of the Two
Wrongful Termination Claims Was Improper.

                        1.         The legal standards governing the
wrongful termination claims.

            Redeker
brought two direct claims for wrongful termination.  The first, wrongful termination in violation
of public policy, requires him to show that his termination “violate[d]
fundamental principles of public policy.”  (Tameny v.
Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170.)  In order for a public policy to be sufficient
to support a Tameny claim, the policy
“must be:  (1) delineated in either
constitutional or statutory provisions; (2) ‘public’ in the sense that it
‘inures to the benefit of the public’ rather than serving merely the interests
of the individual; (3) well established at the time of the discharge; and (4)
substantial and fundamental.”  (>Stevenson v. Superior Court (1997)
16 Cal.4th 880, 894.)  In addition,
there must be a sufficient “nexus” between the adverse action and the violation
of public policy.  (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238,
1258.)  The nexus requirement is
generally satisfied when an employer retaliates against the employee in
violation of the policy.  (3 Witkin,
Summary of Cal. Law (10th ed. 2005) Agency and Employment, § 250,
pp. 325-326.)

            Redeker’s
second cause of action is for wrongful termination in violation of Labor Code
section 1102.5,href="#_ftn1" name="_ftnref1"
title="">[1] which prohibits
retaliation against employees who engage in whistleblowing and related
activities.  Under subdivision (b), “[a]n
employer may not retaliate against an employee for disclosing information to a
government or law enforcement agency, where the employee has reasonable cause
to believe that the information discloses a violation of state or federal
statute, or a violation or noncompliance with a state or federal rule or
regulation.”  Under subdivision (c),
“[a]n employer may not retaliate against an employee for refusing to
participate in an activity that would result in a violation of state or federal
statute, or a violation or noncompliance with a state or federal rule or
regulation.”href="#_ftn2" name="_ftnref2"
title="">[2]

            Claims
for retaliatory termination in violation of public policy or under section
1102.5 are both analyzed under the burden-shifting framework of >McDonnell Douglas Corp. v. Green (1973)
411 U.S. 792.  (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102,
1108-1109 [retaliatory termination in violation of public policy]; >Akers v. County of San Diego (2002)
95 Cal.App.4th 1441, 1453 [section 1102.5].)  First, the plaintiff must establish a prima
facie case by showing “ â€˜(1) he or she engaged in a “protected
activity,” (2) the employer subjected the employee to an adverse employment
action, and (3) a causal link between the protected activity and the employer’s
action.’ â€  (Loggins at p. 1109; see Akers
at p. 1453.)  The employer must then
present evidence that it had “a legitimate, nonretaliatory reason for the
adverse employment action.”  (>Akers at p. 1453; see >Loggins at p. 1109.)  The burden then shifts “back to the employee to
provide ‘substantial responsive evidence’ that the employer’s proffered reasons
were untrue or pretextual.”  (>Loggins at p. 1109; see >Akers at p. 1453.)

             The order of proof under McDonnell Douglas, supra, 411 U.S. 792 shifts somewhat when an
employer brings a motion for summary judgment. 
(Wills v. Superior Court (2011)
195 Cal.App.4th 143, 160.)  In this
context, the employer must “either (1) negate an essential element of [the
employee]’s prima facie case . . . or (2) establish a
legitimate, [nonretaliatory] reason for” the adverse employment action.  (Ibid.)  If the employer makes the required showing,
the employee must then offer “substantial evidence” of pretext or intentional
discrimination.  (Ibid.)

            CSI
moved for summary adjudication of the second cause of action (the § 1102.5
claim) on the ground that the company had legitimate nonretaliatory reasons for
the termination that Redeker could not show were pretextual.  CSI asserted the first cause of action (the >Tameny claim) was predicated on a
violation of the policy embodied in section 1102.5 and failed because the
second cause of action failed.href="#_ftn3"
name="_ftnref3" title="">[3]

2.         There
is a dispute of material fact whether CSI’s claim that Redeker violated his
confidentiality agreement was a pretext for his termination.

            To demonstrate that an employer’s proffered
reason for terminating an employee is pretextual, the employee may show that “the
proffered reason had no basis in fact, the proffered reason did not actually
motivate the discharge, or, the proffered reason was insufficient to motivate
the discharge.”  (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215,
224.)  The employer’s “true reasons need
not necessarily have been wise or correct. 
[Citations.]  While the objective
soundness of an employer’s proffered reasons supports their credibility [citation],
the ultimate issue is simply whether the employer acted with a motive to
discriminate illegally.”  (>Guz v. Bechtel National, Inc. (2000) 24
Cal.4th 317, 358, italics omitted; see also King
v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 436 [“It is
the employer’s honest belief in the stated reasons for firing an employee and
not the objective truth or falsity of the underlying facts that is at issue in
a discrimination case”].)

            The
trial court concluded that CSI had offered evidence of a legitimate
nondiscriminatory reason for terminating Redeker—that he violated his
confidentiality agreement by sending the field-representatives file to his
personal e-mail account when he lacked permission to continue the search for
sex offenders—and that the e-mails between Redeker and Power regarding the sex-offender
issue supported CSI’s contention that Redeker lacked permission to continue the
search.href="#_ftn4" name="_ftnref4" title="">[4]  According to the court, Redeker’s testimony
that he had permission to take the list and continue the search was “by
itself . . . not sufficient to raise a triable issue that the
reason for his termination was pretextual,” and he had offered no other
evidence that CSI’s proffered reason should not be believed.

            We
conclude that there is an issue of material fact whether Redeker had permission
to continue the search.  According to Redeker,
he and Power spoke in person between Power’s 10:51 a.m. e-mail and Redeker’s
4:00 p.m. e-mail, and during this conversation Power gave him permission to
continue the search.  Assuming, as we
must, that this is true, we conclude that Redeker’s comment in the 4:00 p.m. e-mail
that he “recognize[d] the need to discuss and fully evaluate at the appropriate
time the critical business issue of background checking” is not >necessarily an acknowledgement by Redeker
that he needed to stop working on the project immediately.  Instead, the comment can be read as a
recognition that it would take time for CSI to formulate a policy going forward
for dealing with background checks.  As a
result, a genuine question of material fact exists even if Power did not
authorize the search between 4:00 p.m. (when Redeker sent the e-mail) and 4:47
p.m. (when Redeker sent the field-representatives file to his personal e-mail
account).

            It
is also possible to harmonize Power’s January 7 e-mail to Redeker with Redeker’s
version of events.  The trial court
reasoned that it would have been unnecessary for Power to state that he had
spoken to the Jenningses and that “Brian will be deactivating these reps today”
if, as Redeker testified, Power had already told Redeker that B. Jennings
had deactivated one of the three field representatives.  But given Redeker’s stated concern in the
4:00 p.m. e-mail that two field representatives remained active, Power’s statement
can be read as referring to them, not to all three field representatives.  In addition, Power’s telling Redeker that
B. Jennings had deactivated a representative does not necessarily mean
that Power told Redeker he had discussed with both Jenningses how to deal with
the sex-offender issue going forward.

            The
trial court also believed that if Power had agreed to let Redeker continue the
search, “there would [have been] no need for Power to inform [Redeker] that he
was assigning [Harrison] that task,” and that “Power would reasonably have
directed [Redeker] to stop his search now that [Power had] assigned the task to
[Harrison].”  But this goes too far in
interpreting the exchange in CSI’s favor. 
Power’s informing Redeker that Harrison “will continue checking the
remainder of our reps” does not necessarily require an interpretation that Redeker
was being directed to stop working on the project.  Moreover, it is possible that Harrison was
assigned the task after Power gave Redeker
permission to continue the search but before
Power sent his e-mail the next day.  As a
result of these possibilities, we conclude that there is an issue of material
fact whether Redeker had permission to continue the search when he e-mailed the
file to himself and thus whether he violated his href="http://www.fearnotlaw.com/">confidentiality agreement.

            CSI
contends that J. Jennings had a good-faith belief that Redeker violated
his confidentiality agreement, and this is sufficient to preclude Redeker from
showing that CSI’s proffered reason for terminating Redeker was pretextual.  We agree that Redeker did not satisfy his burden
of showing pretext simply by showing that he might not have violated his
confidentiality agreement.  “[The
employer’s] true reasons [for the termination] need not necessarily have been
wise or correct.  [Citations.]”  (Guz v.
Bechtel National, Inc., supra, 24
Cal.4th at p. 358.)  We conclude,
however, that Redeker has introduced sufficient evidence to raise a genuine issue
whether the asserted reason for his termination was a pretext.

            To
begin with, the evidence shows that Redeker was terminated within weeks of his sending
the January 26 e-mail.  The temporal
proximity between an employee’s protected activity and an adverse employment
action may support an inference of retaliation (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467,
479), although timing “alone is not
sufficient to raise a triable issue as to pretext once the employer has offered
evidence of a legitimate, nondiscriminatory reason for the termination.”  (Arteaga
v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 353, italics added.)  Still, timing may well be a relevant factor
in establishing pretext, particularly where, as here, the employee has a good
performance record before engaging in the protected activity.  (See ibid.)

            CSI
argues that the timing of Redeker’s termination does not suggest pretext because
Redeker first raised his concerns about the classification issue soon after he
began working, but he was not monitored or terminated until months later.  As Power acknowledged, however, the January 26
e-mail “changed the tone” of the classification issue.  The January 26 e-mail was apparently the
first time Redeker disclosed to his employer that he was so concerned about the
issue that he had been discussing it with government agencies—a protected
activity under section 1102.5.  The
resulting review of Redeker’s e-mails, and Redeker’s termination within weeks
of the January 26 e-mail, lends credence to the possibility that CSI’s proffered
reason for the termination was a pretext.href="#_ftn5" name="_ftnref5" title="">[5]

            Additional
evidence supporting a possible inference of pretext is the uncontroverted fact
that CSI began monitoring Redeker’s e-mail because
Redeker sent the January 26 e-mail to Power. 
It is possible to infer that CSI reviewed Redeker’s e-mails because it
“was engaged in a search for a pretextual basis for [termination], which in
turn suggests that the subsequent [termination] imposed was for purposes of
retaliation.”  (See Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1062.)  While the monitoring may have been reasonable
and nonretaliatory, it was not necessarily so. 
CSI has not introduced any evidence that it monitored other employees’ e-mail.  In fact, J. Jennings testified that he
could not recall any such surveillance of any other employee.

            Finally,
CSI’s failure to investigate Redeker’s alleged misconduct revealed by the
e-mails also raises the possibility that the stated reason for the termination
was a pretext.  CSI contends that J. Jennings
honestly believed Redeker lacked permission to continue the sex-offender search
based on his review of the e-mails between Redeker and Power, and that J. Jennings
did not know about any permission that Power may have given Redeker to continue
the search.  Redeker disputes CSI’s
contention that Power was not involved in the termination decision, citing
evidence that Power and the Jenningses met daily for discussions.  But even if we assume that J. Jennings
never spoke to Power about whether Redeker had permission to continue the
search, the decision to fire Redeker without getting more information could be suggestive
of possible pretext.  (See >Nazir v. United Airlines, Inc., >supra, 178 Cal.App.4th at p. 280
[“An employer’s failure to interview witnesses for potentially exculpatory
information evidences pretext”].)  CSI
contends that J. Jennings had no reason to investigate, because he was unaware
that Redeker claimed he had permission to continue the search, and the e-mail
evidence established he did not.  But as
discussed above, the e-mail exchange between Redeker and Power does not
foreclose the conclusion that Redeker was
given permission to continue the search. 
This evidence creates a triable issue whether the perceived violation of
the confidentiality agreement was the true reason for Redeker’s termination or pretext
for retaliation.

>            C.        The Unfair Business Practices Claim
Survives with the Wrongful Termination Claims.

            In
its summary judgment motion, CSI offered no independent argument on Redeker’s
claim under Business and Professions Code section 17200.  Rather, CSI simply argued that the viability
of the claim depended on the wrongful termination claims.  The trial court agreed and granted summary adjudication
on this claim since it had granted summary adjudication on Redeker’s wrongful termination
claims.  Because we reverse the summary adjudication
of Redeker’s wrongful termination claims, we also reverse the summary adjudication
of his claim for unfair business practices.href="#_ftn6" name="_ftnref6" title="">[6]  (See Sisemore
v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1426 [holding
that plaintiff who stated claims for discrimination under civil rights statutes
had also stated claim under Business and Professions Code section 17200, which
broadly prohibits “ â€˜ â€œ â€˜anything that can properly be called a
business practice and that at the same time is forbidden by law.’ ”
[Citation.]’ â€])

D.        Summary Adjudication of the Invasion of Privacy Claim Was Proper Because
Redeker Had No Reasonable Expectation of Privacy.

            Redeker’s
claim for invasion of privacy under the California Constitution was based on
the allegation that CSI saw the March 15 e-mail that Redeker had sent to his
personal attorney while it was monitoring his e-mail.  The trial court concluded that Redeker
possessed no protected privacy interest in the e-mail, failed to establish a
serious invasion of any privacy interest, and experienced no injury as a result
of any invasion.  We agree that summary
adjudication of this claim was proper.

            A
claim for invasion of privacy under California Constitution, article I, section
I requires:  (1) “a legally protected
privacy interest”; (2) a reasonable expectation of privacy; and (3) an invasion
of that interest that “ ‘constitute[s] an egregious breach of the social
norms.’ ”  (Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 278, 287.)  Redeker argues that whether he had a
reasonable expectation of privacy is an issue for the fact finder.  He does not, however, challenge the court’s ruling
that he failed to establish a serious invasion of his right to privacy and that
he did not establish any injury.  Either
basis alone justified summary adjudication. 
As a result, we find that Redeker has forfeited his challenge to the summary
adjudication on this claim.  (See >Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d
1012, 1050.)

            Furthermore,
even if Redeker could establish a serious invasion or an injury, we would
conclude that he did not have a reasonable expectation of privacy based on the
undisputed facts.  When “a legally
cognizable privacy interest” exists, “the extent of that interest is not
independent of the circumstances,” and factors including “ ‘accepted community
norms,’ ” any “advance notice,” and “the opportunity to consent to or reject . . .
the invasion” are relevant to the reasonableness determination.  (TBG
Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 449-450.)  “[W]hether the circumstances give rise to a
reasonable expectation of privacy . . . [is a] mixed question[]
of law and fact.”  (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th
360, 370.)  As a result, “ â€˜[i]f the
undisputed material facts show no reasonable expectation of privacy,’ â€ an
invasion of privacy claim may be decided as a matter of law.  (Ibid.)

            CSI’s
employee handbook gave Redeker notice that CSI could monitor personal e-mails
sent from CSI’s computers.  The handbook
provided that “[c]omputers, computer files, the email system, and software
furnished to employees are CSI property intended for business
use . . . .  To
ensure compliance with this policy, computer and email usage may be
monitored.”  The handbook stated that
“[t]he equipment, services, and technology provided to access the Internet
remain at all times the property of CSI. 
As such, CSI reserves the right to monitor Internet traffic, and
retrieve and read any data composed, sent, or received through our online
connections and stored in our computer systems.”  The handbook also stated that “[a]ll Internet
data that is composed, transmitted, or received via [CSI’s] computer
communications systems” may be disclosed “to law enforcement or other third
parties.”

            Redeker
identifies other evidence that he contends creates a factual dispute about the
reasonableness of his expectation of privacy.  He cites two other portions of the
handbook.  The first provides, “While
Internet usage is intended for job-related activities, incidental and
occasional brief personal use is permitted within reasonable limits.”  The second provides, “Because CSI is
sensitive to the legitimate privacy rights of employees, every effort will be
made to guarantee that workplace monitoring is done in an ethical and
respectful manner.”  He also cites B.
Jennings’s admission that the company never orally told or reminded employees
about the policy allowing for monitoring of computer usage, and Redeker’s own
testimony in which he referred to the e-mail to his attorney as being “private”
and “privileged.”

            Redeker
fails to explain how any of this evidence gives rise to a factual dispute.  Neither party disputes the handbook’s contents,
and Redeker does not suggest he was unaware of them or that they did not apply
to him.  CSI does not contest that it did
not inform employees of the handbook provisions except in the handbook
itself.  Although the parties disagree whether
CSI actually reviewed the e-mail to Redeker’s attorney, the disagreement is irrelevant
to the issue of Redeker’s expectation of privacy.  Rather, the dispute is whether, under the
circumstances that both parties agree existed, Redeker’s expectation that the e-mail
to his attorney was private was reasonable. 
This is an issue of law that can be resolved through summary adjudication.

            “[T]he
use of computers in the employment context carries with it social norms that
effectively diminish the employee’s reasonable expectation of privacy with
regard to his use of his employer’s computers.” 
(TBG Ins. Services Corp., >supra, 96 Cal.App.4th at pp.
451-452.)  Here, CSI’s handbook clearly
informed employees that the company could monitor computer usage, which
included “retriev[ing] and read[ing] any data composed, sent, or received
through [CSI’s] online connections and stored in our computer systems.”  The handbook also gave notice that such data
could be disclosed to third parties. 
Personal e-mails sent by CSI’s computers fall into this category.  The handbook provision permitting “incidental
and occasional brief personal use” of CSI’s computers does not, by its terms,
limit CSI’s ability to monitor data transmitted online.  CSI’s promise to do “workplace
monitoring . . . in an ethical and respectful manner” cannot
reasonably be interpreted to mean that CSI was prevented from monitoring personal
e-mail when it had expressly reserved the right to do so.  And the fact that CSI never reminded its
employees about its computer usage policies is of no consequence, especially
since Redeker does not deny that he was aware of those policies.  We conclude that Redeker had no reasonable
expectation of privacy in his personal e-mail sent with CSI’s computers since CSI
told him that it could monitor data he transmitted online using CSI’s computers.  (See Holmes
v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047,
1068-1069.)

III.

Disposition

            The
order granting summary judgment is affirmed in part and reversed in part, and
the case is remanded for further proceedings consistent with this opinion.  The parties shall bear their own costs on
appeal.

 

 

 

 

 

                                                                                    _________________________

                                                                                    Humes,
J.

 

 

We concur:

 

 

_________________________

Ruvolo,
P. J.

 

 

_________________________

Rivera, J.