Ross v. Super. Ct. ( 2022 )

Filed 4/19/22
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CHRISTOPHER ROSS, D079278
Petitioner, (Riverside County
Super. Ct. No. PSC1403729)
v.
THE SUPERIOR COURT OF
RIVERSIDE COUNTY,
Respondent;
COUNTY OF RIVERSIDE,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. Kira L. Klatchko, Judge.
Petition denied in part and granted in part.
James W. Parkinson, APLC, James W. Parkinson; Singleton Schreiber
McKenzie & Scott, Benjamin Israel Siminou; Terry Singleton, A.P.C., Terry
Singleton; Hewgill, Cobb & Lockard and Efaon Cobb for Petitioner.
No appearance for Respondent.
Woodruff, Spradlin & Smart, Daniel K. Spradlin and Keith Raoul
Dobyns for Real Party in Interest.
I. INTRODUCTION
Christopher Ross, a former prosecutor with the Riverside County
District Attorney’s office (DA’s Office), sued the County of Riverside (the
County) for whistleblower retaliation and disability discrimination after the
DA’s Office allegedly demoted him and refused to accommodate medical
issues in response to Ross raising concerns that the DA’s Office was
prosecuting an innocent man for murder. Ross alleged the executive
management team in the DA’s Office retaliated and discriminated against
him “at the specific direction,” and with the “express knowledge and consent”
of, then–District Attorney Paul Zellerbach.
During a deposition, the former district attorney who preceded
Zellerbach, Rodric Pacheco, testified about a conversation he had with the
current district attorney who succeeded Zellerbach, Mike Hestrin. Pacheco
testified that he and Hestrin shared the view that Zellerbach was one of the
most unethical attorneys they had encountered as prosecutors. According to
Pacheco, Hestrin then revealed that an unidentified “County lawyer or
lawyers” asked Hestrin to alter his anticipated testimony regarding his views
of Zellerbach’s ethical character.
Ross subpoenaed Hestrin for a deposition about his communications
with the unidentified County lawyers, as well as regarding advice Hestrin
provided to Ross in Hestrin’s capacity as an official in the prosecutors’ union
in which Ross was a member. The County moved to quash the subpoena
under the “general rule . . . that agency heads and other top governmental
executives are not subject to deposition absent compelling reasons,” such as
“when the official has direct personal factual information pertaining to
material issues in the action and the deposing party shows the information to
2
be gained from the deposition is not available through any other source.”
(Westly v. Superior Court (2004) 125 Cal.App.4th 907, 910-911 (Westly).)
The trial court granted the County’s motion to quash, finding Hestrin’s
alleged communications with the unidentified County lawyers were
irrelevant to Ross’s retaliation and discrimination claims, and that Ross
could obtain evidence regarding his union rights from other sources. Ross
seeks a writ of mandate directing the trial court to vacate its order granting
the motion to quash and to enter a new order denying it.
We deny the petition as it relates to evidence concerning Hestrin’s role
counseling Ross regarding his union rights. Ross has not shown the trial
court abused its discretion by finding he could obtain this type of evidence
from sources other than the sitting district attorney.
We grant the petition as it relates to alleged requests by the
unidentified County lawyers that Hestrin alter his testimony regarding
Zellerbach’s ethical character. Assuming any attorney-client privilege ever
protected such communications, Hestrin waived it by voluntarily disclosing
the communications to Pacheco. And, although we agree with the trial court
that the testimony is irrelevant to the merits of Ross’s substantive claims
against the County, the testimony is relevant to Zellerbach’s credibility, and
he will likely be a material trial witness. Testimony showing the unidentified
County lawyers attempted to suppress or alter a witness’s testimony about
the credibility of a material witness is also relevant to show the County’s
consciousness of guilt.
Accordingly, we deny the petition in part, and grant it in part, as set
forth more fully in our Disposition.
3
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Ross’s Claims Against the County
We base our summary of Ross’s claims against the County on the
allegations in Ross’s complaint and petition for writ of mandamus. We
emphasize that these are merely unadjudicated allegations.
In 2005, Ross joined the DA’s Office as a prosecutor. He was eventually
assigned to the homicide unit.
In 2010, Zellerbach was elected district attorney for Riverside County,
replacing Pacheco. Zellerbach installed Sean Lafferty as Assistant District
Attorney.
In late 2011, Ross was assigned a murder case the DA’s Office had filed
against Roger Parker (the Parker case). The case was assigned to Ross after
another prosecutor in the DA’s Office refused to prosecute the case. After
Ross reviewed the case file, he concluded there was insufficient evidence to
prosecute Parker for murder. Ross repeatedly urged his superiors to drop the
charges against Parker, but they refused.
In 2013, Ross learned DNA evidence exonerated Parker. Ross alleges
he again urged Lafferty to dismiss the charges, but Lafferty refused and
ordered Ross to withhold the exculpatory evidence from the defense. When
Ross told Lafferty he had already given the evidence to Parker’s counsel,
Lafferty responded angrily.
Ross discovered additional exculpatory evidence later in 2013. An
investigator with DA’s Office interviewed a witness who identified Parker’s
roommate as the murderer. The investigator later located a jailhouse
recording of Parker’s roommate confessing to the murder.
Before Ross provided this evidence to Parker’s defense counsel, Ross
was abruptly reassigned from the homicide unit to the filing unit, a
4
ministerial department that reviews arrest reports and makes charging
recommendations.
Ross asked the investigator to give the jailhouse recording of Parker’s
roommate to Lafferty. Ross alleges he again urged Lafferty to dismiss the
charges against Parker, but Lafferty seemed more interested in whether Ross
had provided the recording to Parker’s defense counsel. Ross stated he had
not yet done so, and asked if Lafferty would like him to. Lafferty declined the
offer and assured Ross “he would take care of it.” In fact, Lafferty allegedly
had already instructed the investigator to withhold the recording from
Parker’s counsel.
The DA’s Office finally dropped the charges against Parker, who was
released in 2014 after spending nearly four years in custody.
Meanwhile, beginning in 2013, Ross began experiencing severe
neurological symptoms. Specialists at Cedars-Sinai and the Mayo Clinic
attributed Ross’s symptoms to a concussion syndrome sustained while
deployed to Iraq with the Army. The specialists advised Ross that stress
would trigger his symptoms.
Accordingly, Ross requested that his supervisors stop assigning him
additional murder cases until his medical evaluations were complete.
However, Ross’s superiors not only refused the request, but they transferred
him from the homicide unit to the filing unit.
In response, Ross sought guidance from Hestrin, whom Ross asserts
was president of the Riverside County prosecutors’ union (the Union).
Hestrin provided Ross advice, counseling, and support.
Eventually, Ross’s superiors placed him on administrative leave and
refused to allow him to return to work without a doctor’s note. Ross again
sought advice from Hestrin, who informed Ross that the doctor’s note
5
requirement violated Ross’s rights under the memorandum of understanding
(MOU) between the DA’s Office and the Union. Ross informed the DA’s
Office it was violating his union rights, but the DA’s Office refused to take
him off administrative leave.
In April 2014, when it became clear to Ross that the DA’s Office had
effectively terminated him, Ross resigned.
In June 2014, Hestrin defeated Zellerbach in the election for district
attorney for Riverside County.
In July 2014, Ross filed this lawsuit against the County, Zellerbach,
Lafferty, and other employees of the DA’s Office. Ross asserted claims for
(among other things) whistleblower retaliation (Lab. Code, § 1102.5) arising
from his efforts to persuade the DA’s Office to dismiss the Parker case;
disability discrimination in violation of the Fair Employment and Housing
Act (FEHA) (Gov. Code, § 12940); and violating FEHA by failing to engage in
a good faith interactive process to determine whether reasonable
accommodations could address Ross’s disability. Ross alleged the individual
defendants other than Zellerbach “acted at the specific direction of Zellerbach
and with his express knowledge and consent of their actions.” The individual
defendants were ultimately dismissed, leaving only the County as a
defendant.
The trial court granted summary judgment for the County, but our
court reversed the judgment in 2019. (See Ross v. County of Riverside (2019)
36 Cal.App.5th 580, 592.)
B. Ross’s Deposition Subpoena to Hestrin
In early January 2021, Ross served a subpoena and notice to take
Hestrin’s deposition in late February. The notice contained 11 categories of
document requests regarding the Parker case and DA’s Office policies and
6
procedures under Zellerbach. The parties met and conferred regarding the
scope of Hestrin’s deposition, and whether it should proceed at all.
In the meantime, on February 12, 2021, Ross took the deposition of
Rodric Pacheco, the district attorney who immediately preceded Zellerbach in
office. Pacheco testified he is friends with Hestrin and has stayed in touch
with him, including by discussing this case. Pacheco further testified that
when he called Hestrin “to give him a heads up” that Pacheco “heard that
[Hestrin] was going to be deposed,” Hestrin “revealed certain information
that might be important here.”
Specifically, Pacheco testified as follows about his conversation with
Hestrin:
“Well, we were talking about our respective opinions of Mr.
Zellerbach as one of the most . . . unethical lawyers we’ve
ever seen as prosecutors. And we were discussing that and
he said that the County lawyer or lawyers were telling him
not to say that. And his response to them was to say, ‘I ran
on that’—this is what he told me—‘I ran against Mr.
Zellerbach’ and said that loudly. ‘I’m not changing my
testimony about that. He’s clearly unethical.’
“And that’s what he related to the County lawyers who
wanted him to say something different. This is what he
said. I obviously wasn’t a part of that conversation with
those lawyers. They weren’t his lawyers. They were
lawyers for the County. . . .
“I mean, . . . I’ve heard worse things and I’ve heard smaller
things. It’s pretty bad but, you know—they obviously didn’t
want him to testify in that fashion.”
Pacheco elaborated that Hestrin “was obviously offended and . . . was
adamant he wasn’t going to say that. He made it real clear that—of his
opinion, his belief, his observation of Mr. Zellerbach, and that he was going to
testify truthfully in that respect.”
7
When asked if he “g[o]t the impression from Mr. Hestrin that the
attorneys representing the County were suborning perjury or trying to,”
Pacheco responded:
“Well, Mr. Hestrin made it very clear that they tried to get
him to say that Mr. Zellerbach—that they didn’t want him
to say that Mr. Zellerbach was unethical. And Mr. Hestrin
made it very clear that he was going to tell the truth and
not say that. In fact, quite the opposite. And not for me to
judge.”
Pacheco testified he did not “know the names of the lawyer or
lawyers . . . that had those conversations with . . . Hestrin.” It is, thus,
unclear whether the lawyer or lawyers were associated with the outside law
firm representing the County in this case, the DA’s Office, the County’s
internal office of county counsel, or some other entity. (For convenience only,
we will use the label “unidentified County lawyers” when referring to the
lawyer or lawyers referenced in Pacheco’s deposition.)
Ross later amended his deposition notice of Hestrin to include 27
categories of document requests, including documents regarding any requests
by the unidentified County lawyers for Hestrin to alter his testimony about
Zellerbach’s ethical character, and documents regarding Hestrin’s role with
the Union.
C. The County’s Motion to Quash
The County moved to quash Ross’s deposition subpoena to Hestrin on
the basis Ross had not shown a compelling need to depose a top governmental
official. (See Westly, supra, 125 Cal.App.4th at pp. 910-911.) The County
argued that, contrary to Ross’s assertion, Hestrin was not the Union
president when Ross sought his advice, and Pacheco’s testimony that Hestrin
had related that unidentified County lawyers had asked him to alter his
8
testimony about Zellerbach was irrelevant, “unreliable,” and “factually
incorrect.”
Ross opposed the motion, arguing “Hestrin is a percipient witness to
relevant facts in the underlying case; and there is ‘no other means to obtain
the information.’ ” Regarding Hestrin’s role with the Union, Ross argued
Hestrin (1) “personally rendered assistance . . . when [Ross] experienced
harassing and discriminatory treatment by his supervisors”;
(2) “advised . . . Ross that he did not have to provide a doctor’s note before
returning to work”; (3) directed the Union to pay for Ross’s legal
administrative representative; (4) “continued to provide advice and support
as head of the Union through his agents”; and (5) “was the ‘de facto’ Union
leader” at all relevant times.
Ross also cited Hestrin’s significant administrative duties with the
Union, including setting meeting agendas and running meetings, liaising
between the Union and the DA’s Office, negotiating prosecutors’ employment
contracts and the MOU, controlling all Union representatives in their daily
duties, and representing/controlling/directing all Union member grievances
against the DA’s Office. This made Hestrin “the most knowledgeable
member . . . about the rights of members under the operative MOU.”
In a supporting declaration, Ross acknowledged Hestrin left his role as
president of the Union in 2013 when he declared his candidacy for district
attorney, at which point Deputy District Attorney John Aki took over as
president. But Ross maintained he “continued to look to Mr. Hestrin for
direction, advice, and leadership.” Ross specifically recalled “speaking
directly with Mr. Hestrin about whether [Ross] had to provide a doctor’s note
to return to work . . . .” Ross also recalled having a 15-minute discussion
with Hestrin in mid-2013 about “various MOU violations and harassing
9
treatment of” prosecutors by Zellerbach and his executive management team.
Ross opined “Hestrin was undoubtedly the most knowledgeable member in
the” DA’s Office about prosecutors’ rights under the MOU, and thus “qualifies
as a percipient expert witness on [Ross’s] employment claims against the
County.”
Ross acknowledged in his declaration that on several occasions he
directed questions to Hestrin through Aki. Ross could not “recall a single
instance where Mr. Aki did not get back to [Ross] with a response from Mr.
Hestrin to the effect that ‘Mike said . . .’ or ‘I spoke/talked with Mike
about . . . and he said.’ ”
Regarding Pacheco’s testimony that Hestrin told him unidentified
County lawyers asked him to alter his testimony about Zellerbach, Ross
argued in his opposition that Hestrin had firsthand knowledge about any
such conversation, which was relevant because it violated criminal laws
(attempted subornation of perjury and solicitation of subornation of perjury)
and the California Rules of Professional Conduct. Ross also argued
Zellerbach’s ethical character was relevant to Zellerbach’s motive for
retaliating and discriminating against Ross.
In reply, the County argued it was not necessary to depose Hestrin
regarding union issues because his general duties and knowledge are not
“compelling areas of inquiry,” and discovery produced by Ross showed he
communicated with Aki, not Hestrin, about accommodation issues.
Regarding Hestrin’s comments about unidentified County lawyers allegedly
asking him to alter his testimony, the County argued (1) Pacheco’s deposition
testimony lacked “context” and was “double hearsay”; (2) the outside law firm
representing the County maintained it had no contact whatsoever with
Hestrin before Pacheco’s deposition; (3) there was “no mention of an
10
upcoming deposition” or “trial testimony”; (4) “any conversations counsel for
the County had with Mr. Hestrin would clearly be protected by attorney-
client privilege”; and (5) Hestrin’s opinions regarding Zellerbach’s character
have “absolutely no relevance to Ross’s claims . . . for disability
discrimination and whistleblower retaliation,” which “do not involve Mr.
Zellerbach in any direct way.”
D. The Trial Court’s Ruling
The trial court’s tentative ruling was to grant the County’s motion.
During the unreported motion hearing,1 Ross emphasized that the
accusation that unidentified County lawyers had asked Hestrin to alter his
testimony was supported by the sworn testimony of a former district
attorney. An attorney from the outside law firm representing the County
responded that he personally spoke with Hestrin following Pacheco’s
deposition and confirmed that no one from the firm called Hestrin before
Pacheco’s deposition. Ross noted the County had not provided a declaration
from Hestrin confirming this, which supported an inference that Pacheco
accurately described his conversation with Hestrin.
Regarding union issues, the court indicated it appeared Ross could
obtain this information from Aki. Ross responded by noting that “we do not
know if Mr. Hestrin’s testimony would be cumulative of John Aki’s since Mr.
Aki (currently the Assistant District Attorney) has not been deposed.”
At the end of the hearing, the court took the matter under submission.
1 In accordance with rule 8.486(b)(3)(A) of the California Rules of Court,
Ross’s appellate counsel submitted a declaration to this court “[e]xplaining
why the transcript is unavailable and fairly summarizing the proceedings,
including the parties’ arguments and any statement by the court supporting
its ruling.”
11
On June 4, 2021, the court issued its ruling granting the County’s
motion to quash. Regarding Hestrin’s role with the Union, the court found
that, “to the extent Hestrin is aware of background information pertaining to
this case . . . , that information could easily be obtained through other
sources.” To the extent “Hestrin has knowledge of the logistics of Union
meetings, content of MOUs . . . , and experience handling Union matters,” the
court found Ross had not established either that such topics were relevant to
his claims or that “he cannot obtain the same information from others, like
John Aki, who was the Union president . . . and with whom Ross had similar
conversations.”
Regarding the alleged request that Hestrin alter his testimony about
Zellerbach, the court ruled (in full): “Also, setting aside obvious privilege
issues, discussions between Pacheco and Hestrin about what the County’s
lawyers allegedly said about Zellerbach are not relevant to [Ross]’s
retaliation and discrimination claims.”
E. Writ Proceedings
Ross filed a petition in this court seeking a writ directing the trial court
to vacate its order granting the County’s motion to quash. After requesting
and receiving an informal response from the County, we summarily denied
Ross’s petition.
Ross then filed a petition for review in the California Supreme Court,
which granted the petition and transferred the matter back to this court with
directions to vacate the order denying the petition and to issue an order to
show cause why we should not grant the requested relief.
12
We issued an order to show cause. The County filed a return and
demurrer to the petition.2 Ross filed a reply.
III. DISCUSSION
Ross contends the trial court erred by granting the County’s motion to
quash. We disagree in part, and agree in part.
A. Legal Principles
“California law provides parties with expansive discovery rights.”
(Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016)
246 Cal.App.4th 566, 590 (Lopez).) Thus, “[u]nless otherwise limited” by a
court order, “any party may obtain discovery regarding any matter, not
privileged, that is relevant to the subject matter involved in the pending
action . . . , if the matter either is itself admissible in evidence or appears
reasonably calculated to lead to the discovery of admissible evidence.” (Code
Civ. Proc., § 2017.010.)
Despite the otherwise broad availability of discovery, “[t]he general rule
in California and federal court is that agency heads and other top
governmental executives are not subject to deposition absent compelling
reasons.” (Westly, supra, 125 Cal.App.4th at p. 910; see Nagle v. Superior
Court (1994) 28 Cal.App.4th 1465, 1467-1468 (Nagle); Contractors’ State
License Bd. v. Superior Court (2018) 23 Cal.App.5th 125, 131 (Contractors’
State License Bd.).) “The general rule is based upon the recognition that
2 The County demurred on the basis that Ross failed to state facts
sufficient to justify writ relief. (See Code Civ. Proc., § 1089 [“the party upon
whom the writ or notice has been served may make a return by demurrer,
verified answer or both”].) “Where, as here, the demurrer is based on that
ground and only issues of law are presented by the petition, there is no need
to consider the return and demurrer separately.” (StorMedia Inc. v. Superior
Court (1999) 20 Cal.4th 449, 455, fn. 7.)
13
‘ . . . an official’s time and the exigencies of his everyday business would be
severely impeded if every plaintiff filing a complaint against an agency head,
in his official capacity, were allowed to take his oral deposition. Such
procedure would be contrary to the public interest, plus the fact that
ordinarily the head of an agency has little or no knowledge of the facts of the
case.’ ” (Nagle, at p. 1468; see Westly, at p. 911; Contractors’ State License
Bd., at p. 131.)
“This rule has been applied in numerous cases involving an array of
constitutional officers, board members, and agency heads” (Contractors’ State
License Bd., supra, 23 Cal.App.5th at p. 131), including district attorneys
(People ex rel. Lacey v. Robles (2020) 44 Cal.App.5th 804, 826-827 (Lacey)).
And the rule applies regardless of whether the official is a named defendant
or a third party (Westly, supra, 125 Cal.App.4th at p. 910), or “whether the
official gained the information sought while in his or her present position or
while serving in prior, lower ranking positions at the agency” (Contractors’
State License Bd., at p. 133). “Thus, where a party seeks to depose a high
government official, and the official moves for a protective order, the burden
is on the deposing party to show that compelling reasons exist for permitting
the deposition.” (Id. at p. 132, citing Liberty Mutual Ins. Co. v. Superior
Court (1992) 10 Cal.App.4th 1282, 1287 [applying similar rule to “apex”
deposition of corporate president].)
“An exception will be made to this rule only when the deposing party
makes two showings. First, the deposing party must show that the
government official ‘has direct personal factual’ ”—as opposed to legal—
“ ‘information pertaining to material issues in the action.’ ” (Contractors’
State License Bd., supra, 23 Cal.App.5th at p. 132, quoting Westly, supra,
125 Cal.App.4th at p. 911.) “Second, the deposing party must also show ‘the
14
information to be gained from the deposition is not available through any
other source.’ ” (Contractors’ State License Bd., at p. 132, quoting Westly, at
p. 911; see Nagle, supra, 28 Cal.App.4th at p. 1468.)
“We review a ruling on a motion to quash, like other discovery orders,
for abuse of discretion.” (Facebook, Inc. v. Superior Court (2020) 10 Cal.5th
329, 359.) “This deferential standard of review requires us to uphold the trial
court’s determination, even if we disagree with it, so long as it is within
reason.” (Cates v. California Gambling Control Com. (2007) 154 Cal.App.4th
1302, 1312 (Cates).) “It is well settled that an appellate court reviews the
ruling of the trial court, not its rationale, and may affirm a trial court ruling
on any proper basis presented by the record, whether or not relied upon by
the trial court.” (Ibid.)
B. Analysis
Because Hestrin was district attorney at the time Ross sought to
depose him, Ross was not entitled to take the deposition unless he could show
Hestrin “had direct personal factual information pertaining to material
issues in this case that is not available through any other source.” (Lacey,
supra, 44 Cal.App.5th at p. 827 [affirming protective order in favor of the
sitting district attorney].) As we now explain, we conclude the trial court
acted within its discretion in finding Ross did not meet this burden with
respect to discovery about union issues; but the court erred in finding Ross
did not meet his burden with respect to alleged requests by unidentified
County lawyers that Hestrin alter his testimony about Zellerbach.
1. Union Issues
Ross seeks to depose Hestrin regarding two categories of Union-related
issues: Hestrin’s general expertise in Union affairs, and his specific role in
counseling Ross about his union rights. We only briefly address Ross’s
15
appellate challenge regarding these issues because, after the County
thoroughly addressed them in its return, Ross failed to respond in his reply
brief, thereby “implicitly conced[ing] . . . the [County]’s argument on this
point.” (Rudick v. State Bd. of Optometry (2019) 41 Cal.App.5th 77, 90; see
Western Bagel Company, Inc. v. Superior Court (2021) 66 Cal.App.5th 649,
656, fn. 4.)
Hestrin’s knowledge or expertise regarding Union affairs neither
“ ‘pertain[s] to material issues in the action’ ” nor constitutes “ ‘direct
personal factual information.’ ” (Contractors’ State License Bd., supra, 23
Cal.App.5th at p. 132; see id. at p. 134 [“While [the director of the
Contractors’ State License Board] certainly has knowledge of the Board’s
interpretation of the statutes and its enforcement history, that knowledge is
not personal, factual information.”]; Westly, supra, 125 Cal.App.4th at p. 911
[officials’ “knowledge of what their official duties are” is “a matter of law, not
personal factual information”]; Deukmejian v. Superior Court (1983) 143
Cal.App.3d 632, 634-635 [distinguishing between governor’s “knowledge of
[prison] conditions” and “administration policies . . . alleged to have
contributed to the[m]”].)
As for Hestrin’s direct role in counseling Ross, we discern no abuse of
discretion in the trial court’s finding that Ross could obtain this information
from other sources. Ross acknowledged in his trial court declaration that
Aki, rather than Hestrin, was the Union president when Ross was addressing
alleged retaliation and discrimination issues. Ross further acknowledged
Aki’s extensive involvement in the counseling process, including by acting as
a conduit for communications with Hestrin. And Ross’s counsel
acknowledged at the hearing on the County’s motion that “we do not know if
16
Mr. Hestrin’s testimony would be cumulative of John Aki’s”—and therefore
unnecessary—because Aki “has not been deposed.”
Thus, with respect to evidence regarding union issues, we conclude the
trial court acted within its discretion in finding Ross did not meet his burden
to demonstrate Hestrin “had direct personal factual information pertaining to
material issues in this case that is not available through any other source.”
(Lacey, supra, 44 Cal.App.5th at p. 827.)
2. Alleged Request That Hestrin Alter His Testimony
We reach a contrary conclusion regarding the trial court’s ruling as to
the alleged request by unidentified County lawyers that Hestrin alter his
testimony about Zellerbach. As noted, the trial court’s entire ruling on this
issue was as follows: “Also, setting aside obvious privilege issues, discussions
between Pacheco and Hestrin about what the County’s lawyers allegedly said
about Zellerbach are not relevant to [Ross]’s retaliation and discrimination
claims.”
(a) Privilege
Although the trial court “set[ ] aside” and did not reach the “privilege
issue[ ],” we will address it because we must affirm the trial court’s ruling if
it is correct on any theory, even one the trial court did not reach. (See Cates,
supra, 154 Cal.App.4th at p. 1312.) We cannot affirm on the basis of
privilege.
We will assume, without deciding, that an attorney-client relationship
existed between Hestrin and the unidentified County lawyers Pacheco
referenced in his deposition.3 Thus, communications between Hestrin and
3 This is a generous assumption—Pacheco testified “[t]hey weren’t
[Hestrin’s] lawyers. They were lawyers for the County.” (Italics added.)
17
that counsel are presumptively shielded from discovery by the attorney-client
privilege unless Ross can show the privilege does not apply. (See Evid. Code,
§ 917, subd. (a)4 [“a communication made in confidence in the course of the
lawyer-client . . . relationship . . . is presumed to have been made in
confidence and the opponent of the claim of privilege has the burden of proof
to establish that the communication was not confidential”]; Costco Wholesale
Corp. v. Superior Court (2009) 47 Cal.4th 725, 733 [“the opponent of the claim
of privilege has the burden of proof to establish the communication was not
confidential or that the privilege does not for other reasons apply”]; Manela
v. Superior Court (2009) 177 Cal.App.4th 1139, 1146 (Manela) [“ ‘We begin
with the premise that there can be no discovery of materials which are
privileged.’ ”].)
Ross argues the attorney-client privilege does not apply for two
reasons. First, he maintains Hestrin waived any applicable privilege by
disclosing his communications to a third party (Pacheco). (See § 912 [quoted,
post].) Second, he maintains attorney-client communications aimed at
procuring false testimony fall within the crime-fraud exception to the
privilege. (See § 956, subd. (a) [“There is no privilege under this article if the
services of the lawyer were sought or obtained to enable or aid anyone to
commit or plan to commit a crime or a fraud.”]; State Farm Fire & Casualty
Co. v. Superior Court (1997) 54 Cal.App.4th 625, 648 [applying the crime-
fraud exception where the defendant’s former employee declared she “was
instructed not to provide certain relevant information at [her] depositions”
and was “pressured . . . into not revealing the existence of” certain evidence].)
We agree Hestrin waived any privilege by disclosing the substance of his
4 Further undesignated statutory references are to the Evidence Code.
18
communications with the unidentified County lawyers; thus, we do not reach
Ross’s alternate claim regarding the crime-fraud exception.
By statute, the attorney-client privilege “is waived with respect to a
communication protected by the privilege if any holder of the privilege,
without coercion, has disclosed a significant part of the communication.”
(§ 912, subd. (a); see Transamerica Title Ins. Co. v. Superior Court (1987)
188 Cal.App.3d 1047, 1052 (Transamerica Title).) The scope of the waiver “is
narrowly defined and the information required to be disclosed must fit
strictly within the confines of the waiver.” (Transamerica Title, at p. 1052;
see, e.g., Manela, supra, 177 Cal.App.4th at pp. 1146-1148 [waiver of
privilege as to communications with two doctors did not waive the privilege
as to communications with a third doctor on the same subject].)
The application of these waiver principles is straightforward here.
Taking Pacheco’s testimony at face value, the holder of the privilege (Hestrin)
voluntarily disclosed a significant attorney-client communication (that
unidentified County lawyers asked him to alter his testimony) to a third
party (Pacheco). There is no issue regarding the scope of the waiver because
Ross seeks to depose Hestrin only about the specific communications Hestrin
allegedly disclosed to Pacheco. Thus, Hestrin waived any applicable
attorney-client privilege.
(b) Relevance
The trial court granted the County’s motion to quash primarily on the
basis that “discussions between Pacheco and Hestrin about what the
County’s lawyers allegedly said about Zellerbach are not relevant to [Ross]’s
retaliation and discrimination claims.” Ross does not dispute that the
requested discovery is irrelevant to the substance of his claims. But he
maintains it is relevant for another reason: to show that the unidentified
19
County lawyers’ alleged attempt to suppress or alter testimony about a
material witness’s credibility, which is always relevant (§ 210), is itself
relevant and probative of the County’s consciousness of guilt. We conclude
that where, as here, a party presents credible evidence that another party
has attempted (directly or through its agents) to alter the testimony of a
witness about a material issue in the case—including the credibility of a
witness likely to testify about a material issue—evidence regarding the
alleged attempt is relevant, potentially admissible, and, thus, discoverable.
Parties are generally entitled to “obtain discovery regarding any
matter . . . that is relevant.” (Code Civ. Proc., § 2017.010, italics added; see
Lopez, supra, 246 Cal.App.4th at p. 566.) Evidence regarding a witness’s
credibility is generally relevant and admissible. Section 210 defines
“ ‘[r]elevant evidence’ ” as “evidence, including evidence relevant to the
credibility of a witness or hearsay declarant, having any tendency in reason
to prove or disprove any disputed fact that is of consequence to the
determination of the action.”5 (Italics added.) Section 780 provides that, “in
determining the credibility of a witness,” the trier of fact “may consider” the
witness’s “character for honesty or veracity or their opposites.” (§ 780, subd.
(e), italics added.) And section 1101’s general prohibition on the admissibility
of character evidence does not “affect[ ] the admissibility of evidence offered
to support or attack the credibility of a witness.” (§ 1101, subd. (c).)
Similarly, evidence that a party sought to suppress or alter a witness’s
testimony may indicate a consciousness of guilt, and courts have found
evidence of such efforts admissible when the testimony concerned issues
5 In its return, the County selectively quotes from section 210 to omit
that the definition “includ[es] evidence relevant to the credibility of a
witness.”
20
critical to the case. (See People v. Williams (1997) 16 Cal.4th 153, 201
[“evidence of attempts to suppress evidence are relevant to show
consciousness of guilt”]; People v. Kendall (1952) 111 Cal.App.2d 204, 213
(Kendall) [“Efforts to suppress testimony against himself indicate a
consciousness of guilt on the part of a defendant, and evidence thereof is
admissible against him.”]; Longuy v. La Societe Francaise de Bienfaisance
Mutuelle (1921) 52 Cal.App. 370, 376 (Longuy) [“evidence of a party’s
falsehood or fraud in the preparation and presentation of his case is
receivable against him”].)
For example, in Kendall, evidence showing that the defendant asked a
witness to testify differently at trial than she had before the grand jury, and
that the defendant’s wife offered to pay witnesses to leave the state and not
testify, was admissible because it showed a consciousness of guilt. (See
Kendall, supra, 111 Cal.App.3d at pp. 209, 213-214.) Similarly, in Longuy—a
wrongful death case in which a young child hospitalized with pneumonia died
after her respiratory equipment caught fire—evidence that the child’s father
asked the physician who determined the child died from the pneumonia to
instead testify that she died from burns was admissible against the father.
(Longuy, supra, 52 Cal.App. at pp. 371-372, 375-376.)
Applying these principles, evidence showing that unidentified County
lawyers asked Hestrin to alter his testimony about Zellerbach’s ethical
character would be relevant to show the County harbored concerns about
Zellerbach’s credibility, which would be further relevant to show the County’s
consciousness of guilt.
The County acknowledges this is a potentially viable legal theory, but
argues it does not apply here. That is, whereas the parties in Kendall and
Longuy sought to alter testimony regarding critical issues involving the
21
merits of their cases, the unidentified County lawyers allegedly sought here
to alter testimony relating only to a witness’s ethical character, which is
irrelevant to the merits of Ross’s claims. We are not persuaded. What made
the evidence in Kendall and Longuy admissible is that it was relevant.
Likewise, here, evidence of Zellerbach’s ethical character is relevant because
it reflects on his credibility (§ 210; see § 780, subd. (e)), and he is likely to be a
material witness at trial because Ross alleges Zellerbach “specific[ally]
direct[ed]” the acts of retaliation and discrimination at issue.
Because Ross presented Pacheco’s sworn testimony (rather than a mere
speculative allegation) that unidentified County lawyers sought to alter
Hestrin’s testimony about the credibility of Zellerbach, who is likely to testify
about a material issue in the case, evidence regarding the unidentified
County lawyers’ alleged attempt was relevant, potentially admissible, and,
thus, discoverable. Further, although Hestrin is a high-ranking
governmental official, he has personal factual knowledge of the matter, which
cannot be obtained from any other source. That is, although there may be
other sources of evidence regarding Zellerbach’s credibility generally, there do
not appear to be any other sources of evidence regarding attempts by
unidentified County lawyers to alter witness testimony about Zellerbach’s
credibility—attempts that are independently relevant to the additional issue
of the County’s consciousness of guilt. Accordingly, the trial court erred by
granting the County’s motion to quash as to this narrow issue.
The County contends several deficiencies in Pacheco’s deposition
testimony render it an inadequate basis on which to justify deposing Hestrin.
These contentions lack merit.
First, the County objects that Pacheco’s testimony constitutes “double
hearsay.” But hearsay is not a valid basis on which to bar discovery. (See
22
Smith v. Superior Court (1961) 189 Cal.App.2d 6, 12; Durst v. Superior Court
(1963) 218 Cal.App.2d 460, 464.) Moreover, allowing Hestrin’s deposition
would alleviate the County’s concern by eliminating Pacheco’s layer of
hearsay.
Second, the County casts Pacheco’s testimony as “scant” on details and
lacking context regarding Hestrin’s alleged statements. For example, the
County posits “[t]here is no mention of an upcoming deposition or sworn
testimony,” such that counsel might merely have been advising Hestrin
against “making public statements” about Zellerbach’s ethics “to various
individuals – like Mr. Pacheco.” Pacheco’s testimony refutes this claim. He
testified he called Hestrin to give a heads-up that he “heard that [Hestrin]
was going to be deposed.” And Pacheco recounted that Hestrin repeatedly
used the words “testify” and “testimony.”
Finally, the County complains no fewer than five times in its return
that Ross bases his deposition request on an alleged conversation between
Hestrin and unidentified County lawyers. However, one valid purpose of
discovery is to “obtain[ ] the identity and location of persons having
knowledge of any discoverable matter.” (Code Civ. Proc., § 2017.010; see
Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546 [“the identity of
witnesses must be disclosed if the witness has ‘knowledge of any discoverable
matter,’ including fact, opinion and any information regarding the credibility
of a witness (including bias and other grounds for impeachment)”].)
(c) Conclusion
Our ruling is narrow. We conclude the trial court erred in granting the
County’s motion to quash only as it relates to alleged requests by unidentified
County lawyers that Hestrin alter his testimony in this case about
23
Zellerbach’s ethical character. Hestrin’s deposition will be limited to this
topic.
Additionally, our conclusion pertains only to the discoverability of such
evidence, not its ultimate admissibility at trial. That determination remains
within the trial court’s discretion under section 352 (and other evidentiary
considerations).
IV. DISPOSITION
Let a writ of mandate issue directing the trial court to vacate its order
granting the County’s motion to quash, and to enter a new order granting the
motion only as it relates to union issues, and denying the motion as it relates
to alleged requests by unidentified County lawyers that Hestrin alter his
testimony. The parties shall bear their own costs of this writ proceeding.
HALLER, Acting P. J.
WE CONCUR:
O’ROURKE, J.
DATO, J.
24