Cox v. County of Shasta

Merits: A motion to strike reaches only "irrelevant, false, or improper matter inserted in any pleading" or matter "not drawn or filed in conformity with the laws of this state." (Code Civ. Proc., § 436.) As with a demurrer, the court's review is limited to the face of the challenged pleading and matters subject to judicial notice; the allegations of the complaint are accepted as true, and extrinsic evidence offered by either side to create or resolve factual disputes is not properly considered on this motion. (Code Civ. Proc., § 437(a).

Defendant moves to strike paragraphs 13 and 15-24 pursuant to CCP 436 and CRC 3.1322 on the grounds that they contain improper matter. Specifically, Defendant argues that these paragraphs contain attorney-client privileged communications. The attorney-client privilege protects confidential communications made in the course of the professional relationship for the purpose of obtaining or providing legal advice. Evid. Code, §§ 950-954; Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733. When the communication is a confidential one between attorney and client, the entire communication, including its recitation or summary of factual material, is privileged. Id. at 736. Internal communications among attorneys reflecting legal strategy, mental impressions, and case evaluation are further protected by the attorney work product doctrine. CCP § 2018.030(a). 3

On the face of the Complaint the paragraphs at issue recount and paraphrase confidential communications among County attorneys concerning the handling of two litigation matters, including internal assessments of litigation strategy, directives concerning case management, and legal advice provided in the course of representing the County. These allegations go beyond identifying the existence of a disagreement between Plaintiff and his supervisors; they disclose the substance of privileged deliberations and attorney work product.

Plaintiff's contention that these allegations are necessary to plead the elements of a Labor Code section 1102.5 claim does not defeat the privilege. Relevance and necessity to a claim do not create an exception to the attorney-client privilege or work product doctrine. Both parties cite General Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164, 1189. General Dynamics recognized that a former in-house attorney may pursue a retaliatory discharge claim but that the cause of action for retaliatory discharge may not result in a breach of the attorney-client privilege.

“[t]he in-house attorney who publicly exposes the client's secrets will usually find no sanctuary in the courts. Except in those rare instances when disclosure is explicitly permitted or mandated by an ethics code provision or statute, it is never the business of the lawyer to disclose publicly the secrets of the client. In any event, where the elements of a wrongful discharge in violation of fundamental public policy claim cannot, for reasons peculiar to the particular case, be fully established without breaching the attorney-client privilege, the suit must be dismissed in the interest of preserving the privilege. ...

Indeed, in most wrongful termination suits brought by discharged in-house counsel, whether the attorney-client privilege precludes the plaintiff from recovery will not be resolvable at the demurrer stage. Rather, in the usual case, whether the privilege serves as a bar to the plaintiff's recovery will be litigated and determined in the context of motions for protective orders or to compel further discovery responses, as well as at the time of a motion for summary judgment. ... The trial courts can and should apply an array of ad hoc measures from their equitable arsenal designed to permit the attorney plaintiff to attempt to make the necessary proof while protecting from disclosure client confidences subject to the privilege.

The use of sealing and protective orders, limited admissibility of evidence, orders restricting the use of testimony in successive proceedings, and, where appropriate, in camera proceedings, are but some of a number of measures that might usefully be explored by the trial courts as circumstances warrant.”

General Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164, 1190-1191.

Plaintiff has not established that any exception to the privilege applies. The crime-fraud exception under Evidence Code section 956 requires an evidentiary showing that the County sought or obtained legal services to enable or aid an intended or ongoing crime or fraud, with the focus on the client's intent rather than the subjective beliefs of an attorney within the organization. State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625, 645. The showing offered here consists of Plaintiff's own characterization of internal directives from his supervisors regarding ongoing litigation as unlawful. Moreover, the Plaintiff’s Declaration is extrinsic evidence not properly considered on a motion to strike.

Striking the paragraphs at issue does not require dismissal of Plaintiff's cause of action and does not foreclose Plaintiff from pursuing his claims. Plaintiff remains free to plead the protected 4 activity, his objections, and the retaliation he alleges in terms that do not disclose the substance of privileged attorney communications, and to pursue any need for the underlying privileged material through appropriate procedures, including protective orders, sealing, or in camera review, as contemplated by General Dynamics.

The Motion to Strike Portions of Plaintiff's Complaint is GRANTED. Paragraphs 13 and 15 through 24 of the Complaint are stricken. Plaintiff is granted leave to amend within 20 days of notice of this order.

COX VS. COUNTY OF SHASTA CASE NUMBER: 26CV-0210602 Tentative Ruling on Motion to Seal Portions of Plaintiff’s Complaint: Plaintiff Alan Cox, a former Deputy County Counsel, alleges causes of action for retaliation in violation of Labor Code section 1102.5, arising out of his refusal to carry out directives from his supervisors, County Counsel Joseph Larmour and Assistant County Counsel Patricia Weber, that he believed would require him to violate the law.

Defendant County of Shasta moves to seal paragraphs 13 and 15 through 24 of the Complaint on the grounds that they disclose attorney-client privileged communications and attorney work product concerning the County's handling of two underlying litigation matters. Defendant has filed a related motion to strike the same paragraphs, which is addressed in a separate tentative ruling.

Meet and Confer: Before filing a motion to strike, a party is required to meet and confer in person or on the telephone. CCP § 435.5(a). A motion to strike shall be supported by a declaration stating either that the parties met and conferred or that they were unable to meet and confer. CCP § 435.5(a)(3). The Declaration of Chelsea Avent demonstrates compliance with the meet and confer requirement.

Requests for Judicial Notice: Plaintiff requests the Court take judicial notice of the Complaint, Plaintiff’s Government Claim, the Request for Dismissal in Case No. 206370, the Request for Dismissal in Case No. 205955, the Order Approving Final Distribution in Case No. 32536, the Petition for Prior Court Approval to Engage in Litigation in Case No. 32536, the Lis Pendens in Case No. 205955 and the Ex Parte Petition for Final Discharge in Case No. 32536. The request is granted.

“A court may take judicial notice of the existence of court records, prior court orders, or official acts of executive agencies, but it cannot take judicial notice of the truth of the matters asserted, factual findings, or hearsay allegations contained within those documents.” Steed v. Department of Consumer Affairs, 204 Cal. App. 4th 112 (2012), Licudine v. Cedars-Sinai Medical Center, 3 Cal. App. 5th 881 (2016).

Merits: Recognizing the public's First Amendment right of access to documents used at trial or as a basis of adjudication and a presumption of openness of substantive court proceedings in ordinary cases, our Supreme Court in NBC Subsidiary (KNBC–TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, set forth the findings that both the trial and appellate courts must expressly make to seal a record.

Courts must find that (1) there is an overriding interest supporting sealing records; (2) there is a substantial probability that the interest will be prejudiced absent sealing; (3) the proposed sealing is narrowly tailored to serve the overriding interest; and (4) there is no less restrictive means of achieving the overriding interest. Id. at 1217–1218; see also California Rule of Court 2.550(d).

Overriding Interest. The attorney-client privilege and attorney work product doctrine constitute recognized overriding interests. NBC Subsidiary, 20 Cal.4th at p. 1222, fn.

46. Paragraphs 13 and 15-24 of the Complaint describe communications between Plaintiff and his supervising attorneys, County Counsel Larmour and Deputy County Counsel Weber, concerning legal strategy and litigation decisions in two matters. Plaintiff does not dispute that these communications arose within the attorney-client relationship. Instead, his Opposition argues that the crime fraud exception to the privilege applies. Plaintiff additionally argues that prior public disclosure waives the privilege.

Probability of Prejudice. A substantial probability of prejudice exists absent sealing. Public disclosure of privileged legal advice and attorney work product would reveal legal strategy and mental impressions of counsel and would chill full and candid communication between public entities and their counsel in ongoing and future matters.

Narrow Tailoring and Least Restrictive Means. The request is limited to paragraphs 13 and 15 through 24; the remainder of the Complaint remains publicly accessible. This is the type of limited sealing contemplated by CRC 2.550(e)(1)(B). A protective order would not provide an adequate alternative, as it governs only the use of information prospectively and does not remove privileged material already contained in a publicly filed pleading. No less restrictive means is available to protect the privileged communications at issue.

Crime Fraud Exception. The Court finds Plaintiff has not made the required prima facie showing under Evidence Code section 956 to invoke the crime-fraud exception. That exception requires evidence that the County sought counsel’s assistance to enable or aid the commission of a crime or fraud, with the focus on the client's intent. State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625, 645. Plaintiff's Declaration is framed in terms of his belief that certain directives were unlawful. Assertions of fraud and conclusory statements do not satisfy the standard. Johnson v. Department of Transportation (2025) 109 Cal.App.5th 917, 942. Additionally, the crime-fraud exception does not extend to attorney work product. BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1262.

Prior Public Disclosure. The Court finds that the County's inclusion of related material in Plaintiff's personnel file, and its production of that file to Plaintiff on his request following his separation from employment, did not constitute disclosure to a third party. Personnel files are independently subject to confidentiality protections (Gov. Code, § 7927.700.), and the disclosure was to Plaintiff himself, not to the public or any third party.

The Motion is GRANTED. The Court orders that paragraphs 13 and 15 through 24 of Plaintiff's Complaint be filed under seal. All other portions of the Complaint remain part of the public file.

DUGO VS. MAIUU PARTNERS LLC