Redeker v. Collateral Specialists CA1/4 ( 2013 )

Filed 11/4/13 Redeker v. Collateral Specialists CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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,
A136291
v.
COLLATERAL SPECIALISTS INC., (Marin County
Super. Ct. No. CIV1100779)
Defendant and Respondent.
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.
1
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
2
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
3
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.
4
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
5
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 1102.5,1 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.”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 “ ‘(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.’ ”
(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
1
Unless otherwise noted, all further statutory references are to the Labor Code.
2
Redeker also pleaded a violation of section 1102.5, subdivision (a), which prohibits the
enactment or enforcement of policies against employees’ disclosure of information to
government agencies. The parties and the trial court did not consider the applicability of
this subdivision when litigating the motion for summary judgment, and we accordingly
express no opinion whether it may be a basis for liability.
6
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.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.
3
We take no position on whether the parties and trial court correctly assumed that
Redeker’s first and second causes of action are governed by the same analysis, but we
accept that any distinctions are inconsequential for purposes of resolving this appeal.
7
(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.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
4
The trial court believed that section 1102.6 required CSI “to prove a legitimate reason
for termination . . . by the higher standard of ‘clear and convincing evidence.’ ” We
disagree. Section 1102.6 provides that in an action under section 1102.5, “once it has
been demonstrated by a preponderance of the evidence that an activity proscribed by
[s]ection 1102.5 was a contributing factor in the alleged prohibited action against the
employee, the employer shall have the burden of proof to demonstrate by clear and
convincing evidence that the alleged action would have occurred for legitimate,
independent reasons even if the employee had not engaged in activities protected by
[s]ection 1102.5.” Section 1102.6’s clear-and-convincing standard applies only when it
has been proven that retaliation was a “contributing factor” to the employee’s dismissal,
and the employer would have taken the adverse action even if retaliation had not been a
motive. Section 1102.6 is inapplicable in this case because it has never been determined
or conceded that retaliation was a “contributing factor” to Redeker’s termination.
8
“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
9
Redeker had permission to continue the search when he e-mailed the file to himself and
thus whether he violated his 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,
10
lends credence to the possibility that CSI’s proffered reason for the termination was a
pretext.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
5
In contrast, the timing between Redeker’s March 15 e-mail to his attorney and his
termination is not suggestive of pretext based on the evidence currently before us.
Redeker has offered no proof (except the timing itself) to contradict CSI’s evidence that it
did not monitor e-mails sent on its system from his personal account. In subsequent
proceedings Redeker may be able to present evidence showing that CSI terminated him
in part because of the e-mail to his attorney, but we do not rely on that e-mail’s timing in
concluding that there is an issue of material fact whether CSI’s stated reason for the
termination was a pretext.
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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.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
“ ‘ “ ‘anything that can properly be called a business practice and that at the same time is
forbidden by law.’ ” [Citation.]’ ”])
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
6
Redeker also challenges the exclusion of certain evidence he submitted in opposition to
the summary judgment motion. We need not review these evidentiary rulings because
they all pertain to his causes of action related to his alleged wrongful termination, and we
reverse the summary adjudication of these claims.
12
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, “ ‘[i]f the undisputed material facts show no reasonable
expectation of privacy,’ ” 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
13
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
14
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.
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Humes, J.
We concur:
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Ruvolo, P. J.
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Rivera, J.
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