Opinion
C083250
10-23-2020
Kathleen CARROLL, Plaintiff and Respondent, v. COMMISSION ON TEACHER CREDENTIALING et al., Defendants and Appellants.
Siegel, Yee & Brunner, Dan Siegel, Menlo Park, and Micah Clatterbaugh, Oakland, for Plaintiff and Respondent. Xavier Becerra, Attorney General, Chris A. Knudsen, Senior Assistant Attorney General, Kristin M. Daily, Supervising Deputy Attorney General, Jerry J. Deschler, Deputy Attorney General, for Defendants and Appellants.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of Parts I and II of the Discussion.
Siegel, Yee & Brunner, Dan Siegel, Menlo Park, and Micah Clatterbaugh, Oakland, for Plaintiff and Respondent.
Xavier Becerra, Attorney General, Chris A. Knudsen, Senior Assistant Attorney General, Kristin M. Daily, Supervising Deputy Attorney General, Jerry J. Deschler, Deputy Attorney General, for Defendants and Appellants.
HULL, Acting P. J. SUMMARY OF THE APPEAL Plaintiff Kathleen Carroll sued her former employer, defendant California Commission on Teacher Credentialing (Commission), for terminating her employment in retaliation for her reporting Commission mismanagement to the state auditor. Prior to bringing this action, plaintiff appealed her termination to the State Personnel Board (Board), claiming the Commission fired her in retaliation for her whistleblower activities. She also filed a separate whistleblower retaliation complaint with the Board. The Board denied her claims.
In this action, plaintiff alleged the Commission's termination of her employment violated the California Whistleblower Protection Act ( Gov. Code, § 8547 et seq., the Act), Labor Code section 1102.5, and 42 U.S.C. section 1983 ( section 1983 ). (Statutory section references that follow are to the Government Code unless stated otherwise.) After the Commission removed the matter to federal court, the district court dismissed the section 1983 claim and remanded the matter to state court. A jury found for plaintiff and awarded her substantial damages.
The Commission appeals. It contends (1) the district court's judgment is res judicata as to this action; (2) the Board's decisions collaterally estop this action; (3) the trial court abused its discretion in evidentiary matters by (a) permitting plaintiff's counsel to question witnesses on and asking the jury to draw negative inferences from the Commission's exercise of the attorney-client privilege, (b) denying the admission of the Board's findings and decisions, (c) denying the admission of after-acquired evidence, and (d) denying the admission of evidence mitigating plaintiff's emotional distress; and (4) the damages award was unlawful in numerous respects.
We reverse the judgment. Although the district court's judgment was not res judicata and the Board's decisions did not collaterally estop this action, the trial court committed prejudicial error when it allowed plaintiff's counsel to question witnesses on and ask the jury to draw negative inferences from the defendants’ exercise of the attorney-client privilege and did not timely instruct the jury with the mandatory curative instruction provided in Evidence Code section 913. Because we reverse on this ground, we do not address the Commission's other claims of error.
FACTS AND PROCEEDINGS
Plaintiff began working for the Commission in 2006 as a staff counsel. She was assigned to support the Commission's Committee on Credentials (Committee). The Committee reviews discipline cases and makes recommendations to the Commission for appropriate discipline against credential holders.
In 2009, plaintiff discovered that the Commission had a backlog of reports and cases of teacher misconduct. She raised her concerns with her direct supervisor, assistant chief general counsel and defendant Lee Pope, but he took no action. In a meeting with a member of the Commission, plaintiff alleged that defendant Mary Armstrong, the Commission's general counsel, had lied to the Commission about the backlog in August 2009. In a meeting with Dale Janssen, the Commission's executive director, plaintiff said that some serious discipline cases had not been reviewed for two years.
In January 2010, Janssen informed Crista Hill, the director of the Commission's administrative services division, of plaintiff's complaint. The Commission hired an independent investigator to investigate plaintiff's allegations. That investigation began February 1, 2010.
On March 8, 2010, the investigator complained to Hill about plaintiff's behavior toward her. The investigator also forwarded a letter from plaintiff's union representative written on February 12, 2010, in which the representative complained about how the investigator had conducted her interview of plaintiff. Plaintiff had informed the representative that if the interview was indicative of how the investigator intended to investigate plaintiff's concerns, "it would perhaps be best if the Bureau of State Audits were asked to investigate at this time."
The union representative's letter did not disclose that plaintiff had already called the Bureau of State Audit's whistleblower hotline in December 2009 and reported the backlog. She was told to contact her state senator to request a program audit. In February 2010, plaintiff contacted then-Senator Darrell Steinberg's office, and the senator requested the Joint Legislative Audit Committee to authorize an audit of the Commission. That committee approved the audit request in May 2010.
From July to September 2010, plaintiff met with the state audit's team leader six times after work hours. She also gave the team leader hundreds of Commission documents at his request.
Meanwhile, Hill responded to the union representative's letter of February 12 by sending a letter dated March 15, 2010 to plaintiff. Hill expressed her concern about plaintiff's lack of cooperation with the investigator, and she informed plaintiff that continued failure to cooperate with the investigation would result in future disciplinary action.
On June 7, 2010, Hill forwarded the union representative's February 12 letter to Janssen, Armstrong, and others. The next two days, June 8 and 9, Hill and Armstrong began conversations and exchanged emails about seeking legal advice from the Department of Personnel Administration (DPA). That agency provides legal advice to the Commission on all personnel matters. Janssen and Pope were also involved in these communications. Armstrong stated their questions to DPA were about ethical concerns they had regarding plaintiff and her role as a Commission attorney.
The Commission's human resources manager, Katrina Hollingsworth, participated in two meetings in June 2010 where plaintiff was the topic. In the first meeting, Armstrong, Pope, Hill, and Hollingsworth met with an attorney with DPA. In the second June meeting, Janssen, Armstrong, Pope, Hill, and Hollingsworth met, and they decided to lay off plaintiff. Armstrong testified that this meeting was part of a budgeting exercise required by the Department of Finance due to the state's fiscal crisis. Hollingsworth stated the layoff was not a disciplinary action. Hill directed Hollingsworth to move forward with the layoff, but Hollingsworth never received from Hill a required justification for the layoff based on a budget shortfall.
Janssen, Armstrong, Pope, Hill, and Hollingsworth met again in September 2010. The layoff process was taking too long, and they decided to bring an adverse action against plaintiff. Pope took the lead by interviewing Commission employees to document plaintiff's behavior and by writing a rough draft of the notice that would be delivered to plaintiff. Hollingsworth compiled the documentation and wrote another draft of the notice. She saw there was no documentation of progressive discipline against plaintiff.
On November 16, 2010, the Commission terminated plaintiff's employment. The notice of adverse action stated that during her employment, plaintiff had pursued inappropriate personal and romantic relationships with members of the Committee, encouraged a Committee member to disregard Commission confidentiality provisions, acted rudely toward Committee members and coworkers, refused supervisors’ instructions on several occasions, made disparaging remarks to other employees about coworkers and supervisors, and failed to complete several work assignments.
Approximately five months later, on April 7, 2011, the state auditor released the audit of the Commission. Confirming plaintiff's allegations of misconduct, the audit found delayed processing of teacher misconduct cases, serious charges of misconduct in some of the backlogged cases, fear of retaliation among Commission staff, nepotism and favoritism in hiring and promotion, an inaccurate database used to monitor the caseload, and unauthorized closing of cases without required Committee review.
Plaintiff appealed her termination to the Board in November 2010. She contended the Commission and her supervisors retaliated against her in part for raising concerns about the backlog of discipline cases.
In March 2011, plaintiff also filed a whistleblower retaliation complaint with the Board pursuant to section 8547.8, part of the California Whistleblower Protection Act ( § 8547 et seq. ). The Board consolidated the appeal and the complaint, and an administrative law judge held an evidentiary hearing on both matters over 11 days between July 2011 and January 2012.
The Board upheld plaintiff's termination and denied her whistleblower complaint. As to the termination appeal, the Board found that plaintiff had committed serious misconduct and that dismissal was an appropriate penalty. The Board rejected plaintiff's affirmative defense of retaliation. It found that "clear and convincing evidence showed" that the Commission did not retaliate against plaintiff.
As for the whistleblower complaint, the Board found that plaintiff failed to prove that her disclosures of mismanagement were a contributing factor in her termination and that her termination was in retaliation for her disclosures.
Plaintiff did not seek a writ of mandate to review the Board's decision. Instead, she filed this action in Sacramento County Superior Court and sought damages under the Act, Labor Code section 1102.5, and section 1983. In addition to suing the Commission, plaintiff sued Armstrong, Pope, Janssen, Hill, and another employee in their individual capacities. Only the Commission, Armstrong and Pope remained as defendants at the time of judgment in this matter.
The Commission removed the action to federal court based on federal question jurisdiction. There, it moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. It argued that res judicata barred litigating claims already decided by the Board.
The district court granted the motion in part. It dismissed plaintiff's section 1983 claim with prejudice, finding it was barred by the res judicata effect of the Board's hearing and decision. The court stated that res judicata barred plaintiff's section 1983 count because her whistleblower complaint before the Board litigated the same primary right—wrongful termination in retaliation for her disclosure of the Commission's backlog of disciplinary complaints. The court declined to exercise supplemental jurisdiction over plaintiff's state law claims, and it remanded the matter to the superior court.
At the conclusion of trial in superior court, the jury found for plaintiff on her whistleblower claims. It awarded her $2,094,528 in economic damages and $750,000 in noneconomic damages. It also awarded $90,000 in punitive damages against Armstrong and $130,000 against Pope.
Unless otherwise apparent from the text, we refer to the defendants collectively as the Commission.
DISCUSSION
See footnote *, ante .
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III
Inferences from Claim of Attorney-Client Privilege
The Commission contends the trial court abused its discretion when, over the Commission's objections, it permitted plaintiff's counsel to question Commission witnesses about why they sought legal advice so that the jury could draw negative inferences from the Commission's exercise of the attorney-client privilege. The Commission also claims the court abused its discretion when it refused a number of times to issue a mandatory curative instruction to address counsel's actions as required by Evidence Code section 913 ( section 913 ).
We agree the trial court erred and the error was prejudicial. A. Background
Plaintiff's counsel sought to establish that the defendants knew as early as June 2010, when Crista Hill forwarded the letter from plaintiff's union representative to defendants Armstrong and Pope, that plaintiff had requested the state auditor to audit the Commission, and that her request led to the defendants deciding to terminate plaintiff's employment at that time, not later or for different reasons as the defendants had claimed. To establish the point, counsel relied on emails exchanged in June between Armstrong, Hill, and others regarding a memo they were preparing to send to DPA seeking legal advice. Counsel's questions regarding the emails and regarding the defendants’ intent for seeking advice drew many objections, but the trial court overruled most of them.
Armstrong testified that she learned in January 2010 that a Committee member, Michael Kaufman, and plaintiff had complained to Pope, Dale Janssen and a commissioner that Armstrong had lied to the Commission in August 2009 about the backlog of cases. Armstrong learned in April 2010 that Senator Steinberg was proposing an audit of the Commission. Armstrong and Janssen met with the senator's staff to have the audit postponed.
Armstrong testified that she first spoke about a disciplinary action against plaintiff in September 2010 with Pope. She denied speaking about it in June 2010. Plaintiff's counsel asked Armstrong to look at trial exhibit 29. Exhibit 29 was an email dated June 9, 2010, from Armstrong to Hill, with copies to Janssen and Pope. The subject was "CONFIDENTIAL KC allegations." An attachment to the email was referenced as "CONFIDENTIAL KC allegations.docx." In the email, Armstrong wrote, "I made edits per Dale's suggestion. Crista, I think this is ready to send to DPA. When you do, can you get an idea of the time frame for them to review and get back to us?"
Plaintiff's counsel asked Armstrong what were the "confidential KC allegations" she had mentioned in the email. Armstrong stated they were questions about ethical concerns she and others had regarding plaintiff and her role as a Commission attorney. Armstrong denied those concerns regarded plaintiff's interaction with Senator Steinberg's office and the state auditor. At that time, Armstrong did not know that plaintiff had had any interactions with the senator or the auditor. She believed Kaufman had requested the audit. Four months earlier, Armstrong had concluded that plaintiff was behind Kaufman's allegations. But Armstrong did not think plaintiff, a Commission attorney subject to the attorney-client privilege, would go to the state auditor.
At this point, plaintiff's counsel asked Armstrong to review trial exhibit 30. Exhibit 30 consisted of Hill's June 9, 2010, response to Armstrong's earlier email of that day, and another response by Armstrong to Hill about an hour later. Counsel read out loud the contents of Armstrong's second email: "I agree with your edits (good catches) and your cover letter. Thanks for getting this over there as soon as possible."
Counsel then asked Armstrong what the personnel matter was regarding plaintiff in June 2010. Armstrong stated they had questions about plaintiff's ethical responsibilities; it was not about discipline.
Outside the presence of the jury, plaintiff's counsel complained that the Commission had not produced the document that the emails in exhibits 29 and 30 referenced. The Attorney General, who represented the Commission at trial, said she had produced all the documents she had, and neither she nor Armstrong possessed the document mentioned in the emails. The court asked the parties to find the document.
The following day, the Attorney General informed the court that during the administrative hearing before the Board five years earlier, the emails and the attached document came up in questioning. The Commission at that time asserted the attorney-client privilege in writing and provided a privilege log. The administrative law judge sustained the objection, and the issue had not been raised since then. And at the next day of trial, the Attorney General provided the court with a copy of two privilege logs from the Board hearing and a letter. The Attorney General argued that the document attached to the emails was privileged because it had been incorporated into something that was sent by the Commission to outside counsel.
The Attorney General conceded that the Commission had produced and disclosed the emails that were exhibits 29 and 30 as part of discovery for the Board hearing. The emails themselves did not reveal the privileged content and they were exchanged only between Commission employees.
The court asked if the document that had been attached to the emails concerned how the Commission could best prepare for the notice of adverse action it would file against plaintiff. The Attorney General stated the attachment had nothing to do with the adverse action. He could not disclose what it concerned without violating the privilege, but he could say it was a memo to DPA requesting legal advice and setting forth the issues for which they sought advice. It was not related to plaintiff's adverse action or firing.
Plaintiff's counsel argued he had a right to know what personnel action the Commission was consulting about with DPA in the memo. The trial court disagreed. It asked, and counsel agreed, that even if the memo concerned taking adverse action against plaintiff, the content of the communication would be protected by the attorney client privilege. The court stated that once the Commission asserted the privilege, the court and counsel could not do anything about it, even though plaintiff questioned the credibility of the witnesses that were testifying concerning the document.
During redirect examination of Armstrong, plaintiff's counsel established that on June 7, 2010, Armstrong received from Hill a copy of the letter from plaintiff's union representative that the independent investigator had forwarded to Hill three months earlier. In that letter, plaintiff's representative informed the investigator that plaintiff was dissatisfied with the investigator's interview. Plaintiff had also said it might be best if the state auditor was asked to investigate. Armstrong acknowledged that from this letter, she knew that plaintiff was talking about going to the state auditor in June. She did not know, however, that plaintiff had already contacted the auditor.
Counsel asked Armstrong to look again at trial exhibit 29. The questioning continued thus [there is confusion in the record over the exact dates counsel mentions]:
"Q. So June 8th at 6 o'clock you hear about [plaintiff] talking about the Bureau of State Audits. June 9th at 11:43 in the morning, you and Crista Hill are communicating about something you're going to ask the DPA to do, correct?
"A. Yes
"Q. And what was it that you wanted help from the DPA on?
"[Attorney General]: Objection. Privilege.
"The Court: Well, in terms of that question, that question is permissible.
"The witness: We wanted the DPA's legal advice.
"[Plaintiff's counsel]: You wanted the DPA's legal advice because you were contemplating taking action to terminate [plaintiff's] employment; isn't that correct?
"A. That's not true.
"Q. Well, the DPA is the State agency that provides advice to other people in State service about disciplining employees, correct? "A. It provides a myriad of advice to the – all State agencies that request it. We pay them for the advice. They're in essence our outside counsel for that purpose. And a question for legal review could be about several different subjects.
"Q. So just to refresh your recollection, were you thinking about giving [plaintiff] a pay raise?
"A. No.
"Q. A promotion?
"A. No.
"Q. Giving her extra vacation time?
"A. No.
"Q. Giving her a bigger office?
"A. No.
"Q. I'm just not understanding what the alternative would be as to why you're contacting DPA about [plaintiff] the very day after you learn that she's threatened to go to the Bureau of State Audits?
"[Attorney General]: Objection. Misstates testimony.
"The Court: Overruled. "The Witness: Is there a question there?
"[Plaintiff's counsel]: Isn't it true that you were talking about asking DPA for advice about how to fire [plaintiff]?
"A. No."
The following day at trial, the Attorney General requested that the trial court instruct the jury under section 913. Subdivision (a) of that statute states, "If ... a privilege is or was exercised not to testify with respect to any matter, or to refuse to disclose or to prevent another from disclosing any matter, neither the presiding officer nor counsel may comment thereon, no presumption shall arise because of the exercise of the privilege, and the trier of fact may not draw any inference therefrom as to the credibility of the witness or as to any matter at issue in the proceeding." If the privilege is invoked, at the request of counsel, the court must instruct the jury that no presumption arises because of the exercise of the privilege and the jury may not draw any inference therefrom regarding any matter at issue in the proceeding or the credibility of a witness. ( Evid. Code, § 913, subd. (b).)
The Attorney General argued that over her objection based on privilege, plaintiff's counsel violated section 913 ’s prohibition with his questioning of Armstrong the previous day, and she asked the court to instruct the jury accordingly. The court disagreed.
"The Court: I don't think she asserted the privilege.
"[Attorney General]: We asserted the privilege as to
"The Court: Right. There was never a privilege asserted – generally what happens in that scenario is that the witness takes the stand, they're asked a question, whether or not it's a Fifth Amendment or any other privilege, I refuse to answer that question. That didn't happen yesterday. [¶] Now, if it turns out that something like that takes place, we can deal with that with an instruction to the jury."
Plaintiff's counsel raised similar questions of intent with other witnesses. When questioning Hill about exhibit 29, counsel asked if Armstrong was stating in the email that she had edited the memo Hill had prepared to send to DPA. The Attorney General objected, claiming the question violated the privilege, and she asked for "the 913 instruction." The court said counsel was asking only what the email said, not for any other comments or commentary.
Later, over the Attorney General's objection, counsel repeatedly asked Hill what her intention was for contacting DPA. The dialogue went thus:
"Q. And when you requested advice from [DPA], you were not seeking to reward [plaintiff], were you?
"[Attorney General]: Objection. Refers to privileged conversation.
"The Court: Overruled.
"The Witness: Can you repeat the question?
"The Court: You're asking what her intent was?
"[Plaintiff's counsel]: Yeah. "[Plaintiff's counsel]: Q. Was it your intent to reward [plaintiff]?
"A. We were seeking advice on her current situation.
"Q. I'm asking you about your intent. Were you intending to reward [plaintiff]?
"[Attorney General]: Objection. Vague.
"The Witness: I don't know how to respond to that. Personally, no.
"[Plaintiff's counsel]: Q. I mean were you asking about a pay raise? Was it your intent to give her a pay raise? "A. We generally wouldn't have those conversations with DPA.
"Q. Were you intending to give [plaintiff] a promotion?
"[Attorney General]: I would object to this whole line of questioning.
"The Court: Overruled. Overruled.
"The Witness: No.
"[Plaintiff's counsel]: Q. No. Give her a larger office?
"A. No.
"Q. More days off?
"A. No.
"Q. What was your intent? Your intent was to discipline [plaintiff], wasn't it?
"A. We were having conversations
"[Attorney General]: Objection, you Honor.
"The Court: Overruled."
Hill ultimately stated she "personally had no intent. [¶] ... [¶] It was to seek legal advice." Plaintiff's counsel questioned Pope in a similar manner. Counsel asked Pope whether he knew the emails in exhibits 29 and 30 were about plaintiff. The Attorney General objected based on attorney-client privilege and requested a section 913 instruction. The court sustained the objection and directed the jury to disregard the last question. It did not, however, give the section 913 instruction. When counsel asked Pope what his personal intention was regarding plaintiff at that time, the Attorney General objected. This time, the court overruled the objection. Pope said they were seeking advice from an outside source on an ethical matter. When counsel asked him again what his personal intention was at that time, the Attorney General objected based on attorney-client privilege, and the court sustained the objection.
The Attorney General also raised objections to plaintiff's counsel's line of questions in a motion for nonsuit and at a later hearing prior to jury instructions. The court stated that counsel in his questions was referring to the intent for seeking advice from DPA, which would preexist any type of confidentiality.
In closing argument, plaintiff's counsel argued that exhibits 29 and 30 showed that Armstrong and Pope testified untruthfully when they said they did not know plaintiff had contacted the state auditor until November 2010 when they served the notice of action on her and that they thus could not have terminated her for being a whistleblower. Defendants saw plaintiff's union representative's letter in June which mentioned plaintiff's proposal to contact the Bureau of State Audits. Exhibits 29 and 30 showed that after receiving the letter, the defendants contacted DPA. Counsel stated the court was careful not to allow inquiry into any actual communication with DPA, but the court did allow counsel to question the witnesses about their intent when they were having these conversations in June. Counsel claimed that each of them said they had no intent at that time. But once they saw the union representative's letter, the defendants "escalated their attack" on plaintiff. The Attorney General did not object to this argument.
After the close of evidence, the court gave its instructions to the jury. The instructions included CACI No. 215, the form instruction on exercise of a privilege. The court stated, "A witness or party may have an absolute right not to disclose what they told their attorney in confidence because the law considers this information privileged. Do not consider, for any reason at all, the fact that a witness or party did not disclose what they told their attorney. Do not discuss that fact during your deliberations or let it influence your decision in any way." B. Analysis
The Commission contends the trial court erred by repeatedly permitting plaintiff's counsel to draw negative inferences from the Commission's invocation of the privilege and by refusing to issue the mandatory curative instruction under section 913 when requested. The Commission argues that the court permitted plaintiff's counsel to invite the jury to infer that because the defendants were communicating with attorneys in June 2010, they must have been intending to retaliate against plaintiff at that time. The questioning forced the defendants to decide whether to incur the negative inferences or disclose the content of the privileged memo to rebut counsel's assertions.
The Commission asserts that counsel's closing argument exacerbated the harm. In his argument, counsel referred to the fact that the Commission had asserted the privilege, and then used the fact that defendants could not answer without violating the privilege to argue that they must have been lying. That the defendants were communicating with attorneys showed they had "escalated their attack" on plaintiff.
The Commission also contends the trial court erred when it did not give the instruction mandated by section 913 at the time the Commission exercised the privilege and requested the instruction. And the court's ultimate instruction using CACI No. 215 did not cure the prejudice. The instruction did not explain to the jury that they could not draw any negative inference, as required by section 913. Also, the instruction came far too late for it to cure the prejudice that had already occurred.
We agree with the Commission that the trial court erred.
"The attorney-client privilege, one of the oldest recognized, allows a client to refuse to disclose, and to prevent others from disclosing, confidential communications with an attorney. ( Evid. Code, § 954.) The ‘fundamental purpose behind the privilege is to safeguard the confidential relationship between clients and their attorneys so as to promote full and open discussion of the facts and tactics surrounding individual legal matters.’ ( Mitchell v. Superior Court (1984) 37 Cal.3d 591, 599 [208 Cal.Rptr. 886, 691 P.2d 642].) The privilege is absolute ...." ( People v. Bell (2019) 7 Cal.5th 70, 96, 246 Cal.Rptr.3d 527, 439 P.3d 1102.) It "prevents disclosure of the communication regardless of its relevance, necessity or other circumstances peculiar to the case." ( Kerner v. Superior Court (2012) 206 Cal.App.4th 84, 111, 141 Cal.Rptr.3d 504.)
Once the privilege has been established, the trial judge or counsel for any party may not comment on the fact that a party or witness has exercised the privilege. ( Evid. Code, § 913, subd. (a).) Furthermore, "[t]he jury may not draw any inference from a witness's invocation of a privilege. ( Evid. Code, § 913, subd. (a) ; People v. Mincey (1992) 2 Cal.4th 408, 441 [6 Cal.Rptr.2d 822, 827 P.2d 388].) Upon request, the trial court must so instruct jurors. ( Evid. Code, § 913, subd. (b) ; People v. Mincey, supra , 2 Cal.4th at p. 441 [6 Cal.Rptr.2d 822, 827 P.2d 388].)" ( People v. Doolin (2009) 45 Cal.4th 390, 441-442, 87 Cal.Rptr.3d 209, 198 P.3d 11.)
Section 913 adopted the holding in Griffin v. California (1965) 380 U.S. 609, 85 S.Ct. 1229 ( Griffin ). Griffin prohibited the prosecution from commenting on a criminal defendant's exercise of his Fifth Amendment right not to testify. ( Id . at p. 613, 85 S.Ct. 1229.) Section 913 applies the Griffin rule to all privileges.
Under Griffin jurisprudence, the rule precluding comment by court or counsel on the exercise of the privilege against self-incrimination may not be circumvented through indirect comment. Thus, in People v Gioviannini (1968) 260 Cal.App.2d 597, 67 Cal.Rptr. 303, the prosecutor in a murder case referred to the fact that only two persons knew the true facts, and one was dead. The court held that this and similar comments violated the Griffin rule as "implied invitations to the jury to draw inferences damaging to the defense, not from the general state of the evidence but specifically from appellant's failure to present himself as a witness." ( Id . at p. 604, 67 Cal.Rptr. 303 ; see also People v Mesa (2006) 144 Cal.App.4th 1000, 1005-1006, 50 Cal.Rptr.3d 875 [prosecutor's comment that "unless we have an explanation, then you'll know [defendant] is guilty" was improper].)
Here, by questioning the witnesses about their intentions for seeking legal advice in June 2010 and about specific reasons the witnesses may not have been seeking legal advice, plaintiff's counsel impliedly invited the jury to infer that the witnesses sought legal advice for terminating plaintiff's employment within two days of learning plaintiff had threatened to contact the state auditor. Counsel sought for the jury to draw this inference from the witnesses’ seeking legal advice and exercising their right at trial not to disclose the intentions or purposes for seeking that advice.
Counsel's closing argument exacerbated the harm. He effectively argued that the defendants’ seeking legal advice in June, as established by exhibits 29 and 30, showed that they knew then that plaintiff had talked about going to the state auditor, and that they lied when they testified of not having any particular intent when they sought legal advice. The Commission did not object to this argument, but by then, an objection would have been futile. The court had repeatedly overruled the objections to questions about defendants’ intent for seeking legal advice, and the Commission could reasonably believe the court would have overruled that objection again during the argument. We do not require parties to make futile objections to preserve claims of misconduct arising in closing arguments. (See People v. Potts (2019) 6 Cal.5th 1012, 1035, 245 Cal.Rptr.3d 2, 436 P.3d 899.)
Counsel's actions put defendants in an untenable position. They could avoid the negative inference raised by counsel's questions only by disclosing their specific reasons for seeking legal advice, effectively waiving the attorney-client privilege by disclosing the contents of their communication with counsel. It was this choice that section 913 was enacted to prevent. According to legislative comment on the statute, "If comment could be made on the exercise of a privilege and adverse inferences drawn therefrom, a litigant would be under great pressure to forgo his claim of privilege and the protection sought to be afforded by the privilege would be largely negated. Moreover, the inferences which might be drawn would, in many instances, be quite unwarranted." (Assem. Com. on Judiciary, com. on Evid. Code, § 913, reprinted at 29B pt. 3A West's Ann. Evid. Code (2009 ed.) foll. § 913, p. 245.)
Yet, because defendants chose not to waive the privilege and the trial court did not sustain objections under section 913, the jury was left with counsel's questions and argument to infer that defendants sought legal advice to terminate plaintiff for being a whistleblower in June 2010, an inference that would damage the defendants’ position in the litigation. The trial court's distinction between a persons’ intent for seeking legal advice and the content of the persons’ actual communication to obtain advice did not adequately protect the attorney-client privilege. Disclosing a specific reason for seeking advice will invariably disclose the contents of the communication to the attorney. While the reason itself may not be a protected communication, in this instance, counsel inquired into the intentions of the witnesses in order to disclose the contents of the communication or at least to have the jury infer that the communication dealt with discipline of the plaintiff. This circumvention of the attorney-client privilege is not allowed.
After the close of evidence and the completion of arguments, the court did instruct the jury with CACI No. 215 as part of giving all the jury instructions. The instruction told the jury not to consider, for any reason at all, the fact that a witness or party did not disclose what he or she told the attorney, and not to discuss that fact during deliberations or let it influence their decision in any way. Traditionally, "[a]bsent some contrary indication in the record, we presume the jury follows its instructions ( NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1223 [86 Cal.Rptr.2d 778, 980 P.2d 337] ; People v. Hardy (1992) 2 Cal.4th 86, 208 [5 Cal.Rptr.2d 796, 825 P.2d 781] ) ‘and that its verdict reflects the legal limitations those instructions imposed’ ( Saari v. Jongordon Corp. (1992) 5 Cal.App.4th 797, 808 )." ( Cassim v. Allstate Insurance Co. (2004) 33 Cal.4th 780, 803-804, 16 Cal.Rptr.3d 374, 94 P.3d 513.)
This presumption, however, may be rebutted. "In some circumstances, courts understandably find grounds to consider this presumption rebutted—when the risk that the jury will not follow instructions is sufficiently pronounced. (See Bruton v. United States (1968) 391 U.S. 123, 135-136, [88 S.Ct. 1620, 20 L.Ed.2d 476] [‘[T]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.’].) But we tend to apply such exceptions narrowly and do not extend them without good reason." ( People v. Gonzalez (2018) 5 Cal.5th 186, 205-206, 233 Cal.Rptr.3d 791, 418 P.3d 841.)
Good reason for not relying on the presumption exists here. Because counsel had been allowed to ask so many questions about the defendants’ intentions for seeking and not seeking legal advice, the risk that the jury would ignore the eventual instruction was high. Although section 913 does not state when a court must give the mandated instruction, as this case demonstrates it is far better practice to give it when privilege questions arise during the evidentiary phase of the trial as well as with the other instructions after the evidence has been presented to avoid the problems encountered here.
The errors here went to the crux of the case. Plaintiff had to show she was terminated because she engaged in whistleblowing, and the inferences counsel invited the jury to make based on the defendants’ exercise of the attorney-client privilege in early June 2010 established the required element. No other evidence made the point as strongly. Human resources manager Hollingsworth testified that in a second June 2010 meeting, the defendants decided to layoff plaintiff, but that was not a disciplinary action. It is thus reasonably probable that had the errors not been made and the jury not been invited to infer that the defendants agreed to terminate plaintiff in June 2010, the Commission would have obtained a more favorable verdict. ( People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.) Finding the error to be prejudicial, we reverse the judgment. DISPOSITION
The judgment is reversed. Costs on appeal are awarded to defendants Armstrong, Pope, and the Commission.
We concur:
MAURO, J.
MURRAY, J.