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Superior Court of California
County of Kern
Bakersfield Department 11
Date: 03/06/2020 BCV-18-102633
DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING VS CATHY'S CREATIONS, INC.
Courtroom Staff
Honorable: David R. Lampe Clerk: Veronica D. Lancaster
NATURE OF PROCEEDINGS: TENTATIVE RULING
The court re-opens this matter for further hearing on the following tentative ruling. The matter will be set on
March 27, 2020 at 1:30 p.m. in D-11, on such further date and at such further time as the Court may order should
counsel so agree and stipulate.
Tentative Ruling on Matter Submitted January 22, 2020
MOTION:
Defendants’ Motion to (1) Compel Responses to Interrogatories, (2) Compel Production of Documents, and (3) for
Leave to Depose Specific Individuals.
RULING:
The Court, having taken the above-entitled matter under submission on January 22, 2020, and having fully
considered the arguments of all parties, both written and oral, as well as the evidence presented, now rules as
follows:
The Court grants in part Defendants’ Motion to Compel Responses to Interrogatories, Compel Production of
Documents, and for Leave to Depose Specific Individuals.
Defendant Miller propounded the discovery at issue on DFEH and, despite extensive meet and confer efforts, the
parties have reached an impasse regarding Defendant’s questions inquiring into DFEH’s investigation of
Defendants following Defendant Miller’s unlawful refusal to create a wedding cake celebrating a same-sex
marriage between real parties in interest, Eileen and Mireya Rodriguez-Del Rio. Defendant DFEH’s position is that
the pending discovery is immaterial to the issues framed by the pleadings, and it is privileged pursuant to the
attorney-client privilege and official information privilege.
Relevance
Because the issue of whether Defendants Miller and Cathy’s Creations, Inc.’s Constitutional rights to free speech
and the free exercise of religion protect her decision is one of first impression in California, Defendants have
propounded discovery aimed at eliciting evidence of prosecutorial bias, like that found in Masterpiece Cakeshop,
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LTD v. Colorado Civil Rights Commission (2018) 138 S.Ct. 1719 (“Masterpiece”).
In Masterpiece, the Colorado Civil Rights Commission, like the DFEH, prosecuted a discrimination complaint against
a cake designer and baker after he declined to create a wedding cake for a same-sex couple on grounds it went
against his deeply held religious beliefs. The defendant baker in Masterpiece established the Commission’s
“treatment of his case [had] some elements of a clear and impermissible hostility toward the sincere beliefs that
motivated his objection,” prompting the Supreme Court to reverse the state court rulings. (Masterpiece at 1729.)
The Supreme Court found the Commission had failed to comport with its “obligat[ion] under the Free Exercise
Clause to proceed in a manner neutral toward and tolerant of [the baker’s] religious beliefs.” (Masterpiece at 1731,
quoting Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993) 508 U.S. 520, 547.) With Masterpiece as a guide, Miller
explains the discovery at issue is the only means by which Defendants can examine whether DFEH pursued and
conducted its investigation and prosecution of its claim of discrimination against Defendants with improper
motives, in violation of its obligation of religious neutrality.
In the absence of any controlling California authority, Defendants are entitled to pursue a Masterpiece defense.
Accordingly, DFEH’s contention that the pending discovery is immaterial to the issues framed by the pleadings is
unavailing.
Attorney-Client Privilege
Neither the parties nor the Court has located any authority unequivocally supporting DFEH’s contention that an
attorney-client relationship can exist between the DFEH and aggrieved claimants under the Fair Employment and
Housing Act. DFEH offers several theories in support of its position that an order requiring it to further respond to
the pending discovery would violate the attorney-client privilege. Specifically, Evidence Code section 951,
Government Code section 12965(a), the de facto attorney-client relationship created under federal law between
the federal Equal Employment Opportunity Commission (“EEOC”) and claimants, and the common interest
doctrine. DFEH fails to persuade the Court that these theories viewed individually, or in combination support a
finding of an attorney-client privilege between the DFEH and real parties in interest or parties claiming to be
aggrieved generally.
DFEH’s position is that Evidence Code section 951 mandates a finding of an attorney-client relationship between
DFEH and real parties in interest here. Evidence Code section 951 defines a client as a person who, directly or
through an authorized representative consults a lawyer for the purpose of retaining the lawyer or securing legal
services or advice in the lawyer’s professional capacity. DFEH offers the declarations of real parties as evidence of
an attorney-client relationship. Both state: “From the beginning we felt that the DFEH lawyers represented us, and
we wanted to hear their advice and about the legal process. We felt comfortable to be open and honest with them
about this and other private information because we felt our conversation was confidential. We didn't know much
about the law, but we knew about the attorney client privilege. Even though DFEH is plaintiff, DFEH filed the case
on our behalf and represents our interests. We think of them as our lawyers and have always communicated with
them with the understanding that our conversations and emails are confidential.”
At first blush, the declarations appear to imply a subjective belief that DFEH attorneys represent the real parties in
interest; however, missing from these declarations is an assertion that the real parties in interest’s purpose in
engaging the DFEH in the first place was for purposes of retaining counsel or securing legal services or advice. An
individual’s subjective belief, standing alone, does not create an attorney-client relationship. (Zenith Ins. Co. v.
O'Connor (2007) 148 Cal.App.4th 998.) Furthermore, the unavoidable fact is that real parties in interest, like every
other individual who contacts the DFEH claiming he or she is aggrieved under the FEHA, were legally required to
initiate the claim process through the DFEH attorneys. The mere fact a claimant files a claim with the DFEH, a step
that inevitably includes advice and counseling as to the process, does not create an attorney-client relationship.
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This is because the DFEH’s administrative function precludes such a relationship.
Focusing on a single clause, DFEH also contends Government Code section 12965 supports a finding of an
attorney-client relationship between DFEH and real parties in interest. DFEH suggests its statutory ability to bring
an action “on behalf of the person claiming to be aggrieved,” combined with the real parties’ subjective belief that
DFEH represents them demonstrates an attorney-client relationship. Section 12965 provides in relevant part:
In the case of failure to eliminate an unlawful practice under this part through conference,
conciliation, mediation, or persuasion, or in advance thereof if circumstances warrant, the
director in the director's discretion may bring a civil action in the name of the department on
behalf of the person claiming to be aggrieved. Prior to filing a civil action, the department shall
require all parties to participate in mandatory dispute resolution in the department's internal
dispute resolution division free of charge to the parties in an effort to resolve the dispute
without litigation. In any civil action, the person claiming to be aggrieved shall be the real party in
interest and shall have the right to participate as a party and be represented by that person's
own counsel.
Taken as a whole, section 19265 cannot be interpreted as DFEH suggests and the lack of any California authority
interpreting it as DFEH suggests speaks volumes.
Before the DFEH director can bring a civil action, it must first mediate the dispute between the purportedly
aggrieved party and the defendant, placing the DFEH squarely in the position of neutral fact-finder. Should a real
party in interest opt to participate, he or she does so through separate counsel, not the DFEH. The conduct of the
parties in this case contradicts DFEH’s argument. In responding to Defendants’ discovery in this action, real parties
did so through separate counsel, not the DFEH, which implies a lack of any attorney-client relationship with DFEH.
DFEH simultaneously acknowledges the lack of an attorney-client relationship and argues in favor of one by raising
the common interest doctrine, arguing its communications with real parties are “essential to DFEH’s legal
representation of its actual client—the State—and its de facto clients[, real parties in interest]” and therefore
protected. DFEH misapplies the doctrine. The common interest doctrine would only apply in the absence of an
attorney-client relationship between DFEH and real parties and if the holder of the privilege—real parties and their
counsel—divulged information otherwise protected by their attorney-client relationship and sought protection.
(See Evid. Code, §§ 912 952; Seahaus La Jolla Owners Assn. v. Superior Court (2014) 224 Cal.App.4th 754, 768; and
OXY Resources California, LLC v. Superior Court (2004) 115 Cal.App.4th 874, 889.) There is no evidence this
occurred and there is simply no authority supporting DFEH’s contention that it has a simultaneously separate and
unified attorney-client relationship with the State and real parties here. DFEH’s alternate argument that this Court
should conclude an attorney-client relationship exists by virtue of the federal de facto attorney-client relationship
that exists between the EEOC and aggrieved claimants under the federal equivalent of the FEHA is similarly
inapplicable. As argued by Defendants, “the privileges contained in the Evidence Code are exclusive and the courts
are not free to create new privileges as a matter of judicial policy. ” (Valley Bank of Nevada v. Superior Court (1975)
15 Ca1.3d 652, 656 [original italics].) In the absence of any California case authority applying this privilege, the
Court is unwilling to do so here.
Other provisions of the Government Code further buttress the Court’s conclusion that Government section 12965
does not support DFEH’s position. Section 12930 defines the DFEH’s purpose—to receive, investigate, conciliate,
and prosecute discrimination claims on behalf of the State. When the DFEH carries out these duties, Government
Code section 12920 states it is “deemed an exercise of the police power of the state for the protection of the
welfare, health, and peace of the people of this state,” not individual claimants. Where an attorney is “performing
tasks on behalf of and in the name of the government to which greater standards of neutrality apply, he must
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adhere to those standards.” (People ex rel. Clancy v. Superior Court (1985) 39 Cal. 3d 740, 747.) Because the DFEH
acts in the name of the state, its attorneys are held to principles of heightened neutrality and “are subject to a
heightened standard of ethical conduct applicable to public officials acting in the name of the public—standards
that would not be invoked in an ordinary civil case.” (County of Santa Clara v. Superior Court (2010) 50 Cal. 4th 35,
57.) The DFEH’s role is comparable to that of a district attorney. The mere fact the district attorney’s office
communicates with victims does not create an attorney-client relationship. Those discussions are discoverable.
DFEH’s contention that its relationship with real parties in interest constitutes an attorney-client privilege is
diametrically opposed to the Legislature’s definition of the DFEH as a neutral fact-finder investigating and
prosecuting claims on behalf of the People of the State. In order for an attorney-client relationship to exist, DFEH
would advocate only for the interests of a single individual to the exclusion of others, which is impractical in light
of the fact the DFEH represents the people of the entire State of California. Taking DFEH’s argument a step beyond
the motion before the Court, DFEH’s contention that it represents the real parties in interest in this case and the
People of California would place the DFEH in an untenable position. Hypothetically speaking, if real parties in
interest communicated with third parties in a way that denigrated the traditional religious belief that a marriage is
between a man and woman, or involved themselves with organizations that express those views, those views
could be imputed to the DFEH and the State itself. This would imply an unequivocal animus towards religious
beliefs in violation of the DFEH’s purpose and duties under the law—i.e., to approach the matters before it with a
neutrality towards religion. Based on the foregoing, the Court concludes there is no attorney-client relationship
between DFEH and real parties in interest, nor can there be.
Official Information Privilege
Subject to statutory conditions, a public entity has the privilege to refuse to disclose, and to prevent others from
disclosing, “official information.” (Evid. Code, § 1040(b).) “Official information” means information required in
confidence by a public employee in the course of his or her official duty and not open, or officially disclosed, to the
public before the privilege is asserted. (Evid. Code, § 1040(a).) Unless disclosure “is forbidden by either a federal or
state statute,” the privilege “is expressly conditional, not absolute.” (Marylander v. Superior Court (2000) 81
Cal.App.4th 1119, 1126.) Because disclosure is not expressly barred here, the privilege is conditional. The privilege
“must be applied conditionally on a clear showing that disclosure is against the public’s interest” based on the
circumstances presented. (California State University v. Superior Court (2001) 90 Cal.App.4th 810, 832, quoting
CBS, Inc. v. Block (1986) 42 Cal.3d. 646, 656; and see County of Orange v. Superior Court (2000) 79 Cal.App.4th 759,
763; Suarez v. Office of Administrative Hearings (2004) 123 Cal.App.4th 1191, 1195.)
DFEH contends public interests such as maintaining the confidentiality of its analysis of the claims and its
discretionary decision-making, thereby undermining its ability to perform its duties, and preserving an uninhibited
exchange of information outweigh any countervailing consequences in denying Defendants’ motion. DFEH further
contends Defendants’ failure to offer any evidence of prosecutorial bias thus far in the case prevents a ruling in
their favor.
Preliminarily, to the extent any of the information DFEH contends is protected by the official information privilege
was shared in any fashion with real parties, their counsel, or any other third party, the privilege is waived. As for
information DFEH has not shared with real parties, their counsel, or third parties unrelated to this case, the issue is
whether the public interest in maintaining the confidentiality of the information outweighs the necessity for
disclosure in the interest of justice.
As held in People v. Montes (2014) 58 Cal.4th 809, “a showing of ‘plausible justification’ [for the discovery at issue]
requires a defendant to ‘show by direct or circumstantial evidence that prosecutorial discretion was exercised
with intentional and invidious discrimination in his case.’” (Id. at 829, quoting People v. Keenan (1988) 46 Cal.3d
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478, 506; and see People v. Superior Court (1977) 70 Cal.App.3d 341, 344 (same showing required in civil
prosecutions).) “[A]bsent some substantial and credible showing of invidious discrimination, disclosure of official
investigative material is against the public interest.” (People v. Superior Court, supra, 70 Cal.App.3d 344.)
The DFEH has conceded in this case that Defendant Miller, as the owner of Defendant Tastries, has a sincerely held
religious belief that is protected by California and federal Constitutions, and her refusal to create a wedding cake
for real parties in interest arose from that belief. Rather than issue real parties a right-to-sue letter, which is the
most common response to DFEH complaints, the DFEH nonetheless chose to pursue this case. In light of the fact
that the DFEH has a duty to protect religious discrimination, one could arguably conclude that implicit in the
DFEH’s decision to prosecute Defendants is the DFEH’s determination that the real parties’ rights supersede those
of Defendants. Additionally, DFEH has shared certain information and documents with real parties in interest, a
point that DFEH concedes in arguing the applicability of the attorney-client privilege. If real parties are privy to the
information and evidence DFEH obtained during its investigation and discharge of its role as neutral fact-finder, it
would be unfair and unjust to bar Defendants’ access to such information and evidence. As stated by the United
States Supreme Court and persuasive here, “since the Government which prosecutes an accused also has the duty
to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its
governmental privileges to deprive the accused of anything which might be material to his defense.” (U.S. Reynolds
(1953) 345 U.S. 1, 12.)
California discovery statutes are to be construed liberally in favor of disclosure unless statutory or public policy
considerations clearly prohibit it. (Shepherd v. Superior Court (1976) 17 Cal. 3d 107, 118, overruled on other
grounds in People v. Holloway (2004) 33 Cal.4th 96, 131.) In balancing Defendants’ ability to pursue a Masterpiece
defense against the stated public interests, the Court concludes Defendants should be permitted to inquire into
whether the exercise of prosecutorial discretion is motivated by an impermissible unconstitutional bias. Put
another way, Defendants are entitled to confirm the DFEH has complied with its obligation toward religious
neutrality. The Court concludes that Defendants’ right to pursue their defense combined with the reality that there
is no other means by which they can obtain the information at issue outweighs the DFEH’s desire to maintain the
confidentiality of its investigation.
Discovery at Issue
While the Court concludes the official information privilege does not bar production here, the Court is cognizant of
the fact that the information at issue may remain protected under the attorney work product doctrine. Code of
Civil Procedure section 2018.030 defines work product, distinguishing between work product that is absolutely
privileged and work product other than an attorney's mental impressions, which is entitled only to qualified
protection:
(a) A writing that reflects an attorney's impressions, conclusions, opinions, or legal research or
theories is not discoverable under any circumstances.
(b) The work product of an attorney, other than a writing described in subdivision (a), is not
discoverable unless the court determines that denial of discovery will unfairly prejudice the party
seeking discovery in preparing that party's claim or defense or will result in an injustice.
Generally speaking, “a court may not require disclosure of information claimed to be privileged in order to rule on
a claim of privilege. In camera review of privileged documents is generally prohibited because ‘the privilege is
absolute and disclosure may not be ordered, without regard to relevance, necessity or any other particular
circumstances peculiar to the case.’ [Citations omitted.]” (OXY Res. California LLC v. Superior Court (2004) 115
Cal.App.4th 874, 896.) This is in line with the strictures of Evidence Code section 915(a), which provides that a
court “may not require disclosure of information claimed to be privileged under this division or attorney work
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product under subdivision (a) of Section 2018.030 of the Code of Civil Procedure in order to rule on the claim of
privilege….” However, “if necessary to determine whether an exception to the privilege applies, the court may
conduct an in camera hearing notwithstanding section 915. [Citation.]” (Ibid., italics added.)
Generally, in camera hearings should be limited to a determination whether there is an exception to, or waiver of,
the privilege, and “whether the exception or waiver depends on the content of the communication.
[Citation.]” [Citation.] “[W]here an exception to a privilege depends upon the content of a communication, the
court may require disclosure in camera in making its ruling.” [Citation.] (OXY Res. California LLC v. Superior Court,
supra, 115 Cal.App.4th at 896.)
In contrast, qualified work product can be reviewed in camera. (Code Civ. Proc., § 2018.030 (“[t]he work product of
an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that
denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or
will result in an injustice.”).)
In line with the above authority, the Court directs DFEH to produce for in camera review all matters it contends
constitutes work product within the meaning of Code of Civil Procedure section 2018.030 including but not limited
to work product that (1) DFEH and its staff has communicated to or shared in any fashion with third parties,
including real parties in interest or their counsel, (2) reflects or documents any statements of others (excluding
client), (3) reflects or documents third party communications made to counsel, or (4) contains anything other than
thoughts, analysis, impressions as defined by Code of Civil Procedure section 2018.030(b).
As to any writings withheld, the DFEH should produce a privilege log.
All responses ordered herein shall encompass the entire action, to include the date on which real parties made
contact with the DFEH through the present. The Court concludes that DFEH’s role as neutral fact-finder pursuant to
the FEHA does not warrant DFEH’s limitation of its responses to only the investigation phase of this action.
Special Interrogatories 6 & 7: Defendant Miller asks DFEH to “[d]escribe all actions undertaken by the DFEH as part
of its administrative investigation of Eileen and Mireya Rodriguez-Del Rios’ complaint against Defendants, and
subsequent civil actions brought against Defendants, through which the DFEH complied with its Constitutional duty
to avert religious discrimination,” and “to ensure that none of its actions were motivated by a hostility towards
disfavored religious beliefs.”
The Court orders DFEH to respond to the following modified version, which combines special interrogatories 6 and
7:
What specific measures were taken by DFEH to fulfill the DFEH’s duty under the FEHA to
investigate and prosecute real parties’ claim against Miller free of any discrimination against
Miller’s religious beliefs from the date on which DFEH received, investigated, and litigated Eileen
and Mireya Rodriguez-Del Rios’ complaint to the present.
Request for Production of Documents 6-9, 19 & 20:
The specific requests for production state:
6. Please produce all DOCUMENTS which evidence the DFEH’S compliance with its Constitutional
duty to ensure that none of its actions were motivated by a hostility towards disfavored religious
beliefs, with respect to its administrative investigation of Eileen and Mireya Rodriguez-Del Rios'
complaint against Defendants, and subsequent civil actions brought against Defendants.
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7. Please produce all DOCUMENTS which evidence the DFEH’s compliance with its Constitutional
duty to avert religious discrimination, with respect to its administrative investigation of Eileen
and Mireya Rodriguez-Del Rios’ complaint against Defendants, and subsequent civil actions
brought against Defendants.
8. Please produce all DOCUMENTS and COMMUNICATIONS sent between the DFEH and Eileen
and Mireya Rodriguez-Del Rio.
9. Please produce all DOCUMENTS and COMMUNICATIONS sent between the DFEH and legal
counsel for Eileen and Mireya Rodriguez-Del Rio.
19. Produce all non-privileged DOCUMENTS in your possession, custody, or control relating to
Eileen and Mireya Rodriguez-Del Rios which are not being produced in response to other
document requests.
20. Produce all non-privileged DOCUMENTS in your possession, custody, or control relating to
Defendants which are not being produced in response to other document requests.
Keeping in mind the attorney-client privilege and official information privileges have been found inapplicable,
DFEH shall produce all responsive documents to the Court for an in camera determination of whether the
responsive documents constitute attorney work product in accord with the parameters previously set forth by the
court.
Depositions:
Defendant Miller seeks the deposition testimony of Jon Ichinaga, Timothy Martin, Jenna Kincade, Patrice Doehrn,
and Clara Hernandez regarding the administrative investigation and about Miller’s special interrogatory numbers
4, 8-11, and 17. As explained by Miller, Martin is a former DFEH attorney that has appeared in connection with this
action, while Ichinaga and Kincade are former DFEH attorneys unconnected with this action. Doehrn and
Hernandez are DFEH investigators.
The deposition questions at issue state:
4. Identify … every individual involved with or in the DFEH’s decision to apply
ex parte for injunctive relief on December 13, 2017, in California Superior Court.
8. For each individual identified in response to Special Interrogatory Nos. 2 and 3
[(DFEH employees working on the investigation and/or the litigation)], identify whether they
approve or disapprove of the legalization of same-sex marriage.
9. For each individual identified in response to Special Interrogatory Nos. 2 and 3, identify
whether they approve or disapprove of tolerating the beliefs of others who generally disapprove
of same-sex marriage.
10. For each individual identified in response to Special Interrogatory No. 8 who approves of
tolerating the same-sex marriage beliefs of others, identify the boundaries of that toleration,
including whether that includes permitting them to enter the marketplace but decline to
participate in same-sex weddings.
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11. For each individual identified in response to Special Interrogatory Nos. 2 and 3, explain why
they were assigned to the administrative investigation or action.
17. State whether the DFEH corresponded or otherwise engaged in any communications with
representatives from any non-governmental organization or with any individual regarding a
possible claim against Tastries before filing this action. If so, describe in detail the nature and
substance of that communication; identify the name, title, address, and telephone number for
that representative or individual; the date(s) on which the correspondence or communication
took place; and the individual who initiated the communication.
Numbers 2 and 3 ask DFEH to “[i]dentify by name, title, and relationship to the investigation, every individual
involved with or in the DFEH’s administrative investigation of Eileen and Mireya Rodriguez-Del Rios’ complaint
against Defendants, to which the DFEH assigned the case no. 935123-315628,” and “[i]dentify by name, title, and
relationship to the action, every individual involved with or in the DFEH’s civil action actions against Defendants,
which the California Superior Court has assigned the case nos. BCV-17-102855 and BCV-18-102633,” respectively.
The Court denies the motion as to special interrogatories 8, 9, and 10 based on its conclusion the questions invade
the privacy rights of these individuals. The DFEH employees’ personal beliefs bear no relation to the exercise of
their public function.
The Court grants the motion as to special interrogatories 4, 11, and 17. The depositions of the named individuals
shall be overseen by a referee for purposes of determining whether the questions seek information protected as
attorney work-product.
The Court overrules DFEH’s objection to paragraph 10 of Attorney Trissell’s declaration and sustains Defendants’
objections.
Case Management Conference set on March 19, 2020 is continued to March 27, 2020 at 8:30 a.m. in Department
11.
Copy of tentative ruling mailed to all parties as stated on the attached certificate of mailing.
FUTURE HEARINGS:
March 27, 2020 1:30 PM Further Case Management Conference
Lampe, David R.
Bakersfield Department 11
March 27, 2020 1:30 PM Further Hearing - Pre-Disposition
Lampe, David R.
Bakersfield Department 11
MINUTES FINALIZED BY: VERONICA LANCASTER ON: MARCH 06, 2020
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DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING VS CATHY'S CREATIONS, INC.
BCV-18-102633
CERTIFICATE OF MAILING
The undersigned, of said Kern County, certify: That I am a Deputy Clerk of the Superior Court of the State of California,
in and for the County of Kern, that I am a citizen of the United States, over 18 years of age, I reside in or am employed in
the County of Kern, and not a party to the within action, that I served the Minutes dated March 06, 2020 attached hereto
on all interested parties and any respective counsel of record in the within action by depositing true copies thereof,
enclosed in a sealed envelope(s) with postage fully prepaid and placed for collection and mailing on this date, following
standard Court practices, in the United States mail at Bakersfield California addressed as indicated on the attached
mailing list.
Date of Mailing: March 06, 2020
Place of Mailing: Bakersfield, CA
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Tamarah Harber-Pickens
CLERK OF THE SUPERIOR COURT
Date: March 06, 2020
Signed: 3/6/2020 04:10 PM
By:
Veronica Lancaster, Deputy Clerk
MAILING LIST
GREGORY J MANN CHARLES S LIMANDRI
320 4TH STREET SUITE 1000 LAW OFC
LOS ANGELES CA 90013 PO BOX 9520
RANCHO SANTA FE CA 92067-
Certificate of Mailing
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Preview
Superior Court of California County of Kern Bakersfield Department 11 Date: 03/06/2020 BCV-18-102633 DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING VS CATHY'S CREATIONS, INC. Courtroom Staff Honorable: David R. Lampe Clerk: Veronica D. Lancaster NATURE OF PROCEEDINGS: TENTATIVE RULING The court re-opens this matter for further hearing on the following tentative ruling. The matter will be set on March 27, 2020 at 1:30 p.m. in D-11, on such further date and at such further time as the Court may order should counsel so agree and stipulate. Tentative Ruling on Matter Submitted January 22, 2020 MOTION: Defendants’ Motion to (1) Compel Responses to Interrogatories, (2) Compel Production of Documents, and (3) for Leave to Depose Specific Individuals. RULING: The Court, having taken the above-entitled matter under submission on January 22, 2020, and having fully considered the arguments of all parties, both written and oral, as well as the evidence presented, now rules as follows: The Court grants in part Defendants’ Motion to Compel Responses to Interrogatories, Compel Production of Documents, and for Leave to Depose Specific Individuals. Defendant Miller propounded the discovery at issue on DFEH and, despite extensive meet and confer efforts, the parties have reached an impasse regarding Defendant’s questions inquiring into DFEH’s investigation of Defendants following Defendant Miller’s unlawful refusal to create a wedding cake celebrating a same-sex marriage between real parties in interest, Eileen and Mireya Rodriguez-Del Rio. Defendant DFEH’s position is that the pending discovery is immaterial to the issues framed by the pleadings, and it is privileged pursuant to the attorney-client privilege and official information privilege. Relevance Because the issue of whether Defendants Miller and Cathy’s Creations, Inc.’s Constitutional rights to free speech and the free exercise of religion protect her decision is one of first impression in California, Defendants have propounded discovery aimed at eliciting evidence of prosecutorial bias, like that found in Masterpiece Cakeshop, MINUTES Page 1 of 9 DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING VS CATHY'S BCV-18-102633 CREATIONS, INC. LTD v. Colorado Civil Rights Commission (2018) 138 S.Ct. 1719 (“Masterpiece”). In Masterpiece, the Colorado Civil Rights Commission, like the DFEH, prosecuted a discrimination complaint against a cake designer and baker after he declined to create a wedding cake for a same-sex couple on grounds it went against his deeply held religious beliefs. The defendant baker in Masterpiece established the Commission’s “treatment of his case [had] some elements of a clear and impermissible hostility toward the sincere beliefs that motivated his objection,” prompting the Supreme Court to reverse the state court rulings. (Masterpiece at 1729.) The Supreme Court found the Commission had failed to comport with its “obligat[ion] under the Free Exercise Clause to proceed in a manner neutral toward and tolerant of [the baker’s] religious beliefs.” (Masterpiece at 1731, quoting Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993) 508 U.S. 520, 547.) With Masterpiece as a guide, Miller explains the discovery at issue is the only means by which Defendants can examine whether DFEH pursued and conducted its investigation and prosecution of its claim of discrimination against Defendants with improper motives, in violation of its obligation of religious neutrality. In the absence of any controlling California authority, Defendants are entitled to pursue a Masterpiece defense. Accordingly, DFEH’s contention that the pending discovery is immaterial to the issues framed by the pleadings is unavailing. Attorney-Client Privilege Neither the parties nor the Court has located any authority unequivocally supporting DFEH’s contention that an attorney-client relationship can exist between the DFEH and aggrieved claimants under the Fair Employment and Housing Act. DFEH offers several theories in support of its position that an order requiring it to further respond to the pending discovery would violate the attorney-client privilege. Specifically, Evidence Code section 951, Government Code section 12965(a), the de facto attorney-client relationship created under federal law between the federal Equal Employment Opportunity Commission (“EEOC”) and claimants, and the common interest doctrine. DFEH fails to persuade the Court that these theories viewed individually, or in combination support a finding of an attorney-client privilege between the DFEH and real parties in interest or parties claiming to be aggrieved generally. DFEH’s position is that Evidence Code section 951 mandates a finding of an attorney-client relationship between DFEH and real parties in interest here. Evidence Code section 951 defines a client as a person who, directly or through an authorized representative consults a lawyer for the purpose of retaining the lawyer or securing legal services or advice in the lawyer’s professional capacity. DFEH offers the declarations of real parties as evidence of an attorney-client relationship. Both state: “From the beginning we felt that the DFEH lawyers represented us, and we wanted to hear their advice and about the legal process. We felt comfortable to be open and honest with them about this and other private information because we felt our conversation was confidential. We didn't know much about the law, but we knew about the attorney client privilege. Even though DFEH is plaintiff, DFEH filed the case on our behalf and represents our interests. We think of them as our lawyers and have always communicated with them with the understanding that our conversations and emails are confidential.” At first blush, the declarations appear to imply a subjective belief that DFEH attorneys represent the real parties in interest; however, missing from these declarations is an assertion that the real parties in interest’s purpose in engaging the DFEH in the first place was for purposes of retaining counsel or securing legal services or advice. An individual’s subjective belief, standing alone, does not create an attorney-client relationship. (Zenith Ins. Co. v. O'Connor (2007) 148 Cal.App.4th 998.) Furthermore, the unavoidable fact is that real parties in interest, like every other individual who contacts the DFEH claiming he or she is aggrieved under the FEHA, were legally required to initiate the claim process through the DFEH attorneys. The mere fact a claimant files a claim with the DFEH, a step that inevitably includes advice and counseling as to the process, does not create an attorney-client relationship. MINUTES Page 2 of 9 DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING VS CATHY'S BCV-18-102633 CREATIONS, INC. This is because the DFEH’s administrative function precludes such a relationship. Focusing on a single clause, DFEH also contends Government Code section 12965 supports a finding of an attorney-client relationship between DFEH and real parties in interest. DFEH suggests its statutory ability to bring an action “on behalf of the person claiming to be aggrieved,” combined with the real parties’ subjective belief that DFEH represents them demonstrates an attorney-client relationship. Section 12965 provides in relevant part: In the case of failure to eliminate an unlawful practice under this part through conference, conciliation, mediation, or persuasion, or in advance thereof if circumstances warrant, the director in the director's discretion may bring a civil action in the name of the department on behalf of the person claiming to be aggrieved. Prior to filing a civil action, the department shall require all parties to participate in mandatory dispute resolution in the department's internal dispute resolution division free of charge to the parties in an effort to resolve the dispute without litigation. In any civil action, the person claiming to be aggrieved shall be the real party in interest and shall have the right to participate as a party and be represented by that person's own counsel. Taken as a whole, section 19265 cannot be interpreted as DFEH suggests and the lack of any California authority interpreting it as DFEH suggests speaks volumes. Before the DFEH director can bring a civil action, it must first mediate the dispute between the purportedly aggrieved party and the defendant, placing the DFEH squarely in the position of neutral fact-finder. Should a real party in interest opt to participate, he or she does so through separate counsel, not the DFEH. The conduct of the parties in this case contradicts DFEH’s argument. In responding to Defendants’ discovery in this action, real parties did so through separate counsel, not the DFEH, which implies a lack of any attorney-client relationship with DFEH. DFEH simultaneously acknowledges the lack of an attorney-client relationship and argues in favor of one by raising the common interest doctrine, arguing its communications with real parties are “essential to DFEH’s legal representation of its actual client—the State—and its de facto clients[, real parties in interest]” and therefore protected. DFEH misapplies the doctrine. The common interest doctrine would only apply in the absence of an attorney-client relationship between DFEH and real parties and if the holder of the privilege—real parties and their counsel—divulged information otherwise protected by their attorney-client relationship and sought protection. (See Evid. Code, §§ 912 952; Seahaus La Jolla Owners Assn. v. Superior Court (2014) 224 Cal.App.4th 754, 768; and OXY Resources California, LLC v. Superior Court (2004) 115 Cal.App.4th 874, 889.) There is no evidence this occurred and there is simply no authority supporting DFEH’s contention that it has a simultaneously separate and unified attorney-client relationship with the State and real parties here. DFEH’s alternate argument that this Court should conclude an attorney-client relationship exists by virtue of the federal de facto attorney-client relationship that exists between the EEOC and aggrieved claimants under the federal equivalent of the FEHA is similarly inapplicable. As argued by Defendants, “the privileges contained in the Evidence Code are exclusive and the courts are not free to create new privileges as a matter of judicial policy. ” (Valley Bank of Nevada v. Superior Court (1975) 15 Ca1.3d 652, 656 [original italics].) In the absence of any California case authority applying this privilege, the Court is unwilling to do so here. Other provisions of the Government Code further buttress the Court’s conclusion that Government section 12965 does not support DFEH’s position. Section 12930 defines the DFEH’s purpose—to receive, investigate, conciliate, and prosecute discrimination claims on behalf of the State. When the DFEH carries out these duties, Government Code section 12920 states it is “deemed an exercise of the police power of the state for the protection of the welfare, health, and peace of the people of this state,” not individual claimants. Where an attorney is “performing tasks on behalf of and in the name of the government to which greater standards of neutrality apply, he must MINUTES Page 3 of 9 DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING VS CATHY'S BCV-18-102633 CREATIONS, INC. adhere to those standards.” (People ex rel. Clancy v. Superior Court (1985) 39 Cal. 3d 740, 747.) Because the DFEH acts in the name of the state, its attorneys are held to principles of heightened neutrality and “are subject to a heightened standard of ethical conduct applicable to public officials acting in the name of the public—standards that would not be invoked in an ordinary civil case.” (County of Santa Clara v. Superior Court (2010) 50 Cal. 4th 35, 57.) The DFEH’s role is comparable to that of a district attorney. The mere fact the district attorney’s office communicates with victims does not create an attorney-client relationship. Those discussions are discoverable. DFEH’s contention that its relationship with real parties in interest constitutes an attorney-client privilege is diametrically opposed to the Legislature’s definition of the DFEH as a neutral fact-finder investigating and prosecuting claims on behalf of the People of the State. In order for an attorney-client relationship to exist, DFEH would advocate only for the interests of a single individual to the exclusion of others, which is impractical in light of the fact the DFEH represents the people of the entire State of California. Taking DFEH’s argument a step beyond the motion before the Court, DFEH’s contention that it represents the real parties in interest in this case and the People of California would place the DFEH in an untenable position. Hypothetically speaking, if real parties in interest communicated with third parties in a way that denigrated the traditional religious belief that a marriage is between a man and woman, or involved themselves with organizations that express those views, those views could be imputed to the DFEH and the State itself. This would imply an unequivocal animus towards religious beliefs in violation of the DFEH’s purpose and duties under the law—i.e., to approach the matters before it with a neutrality towards religion. Based on the foregoing, the Court concludes there is no attorney-client relationship between DFEH and real parties in interest, nor can there be. Official Information Privilege Subject to statutory conditions, a public entity has the privilege to refuse to disclose, and to prevent others from disclosing, “official information.” (Evid. Code, § 1040(b).) “Official information” means information required in confidence by a public employee in the course of his or her official duty and not open, or officially disclosed, to the public before the privilege is asserted. (Evid. Code, § 1040(a).) Unless disclosure “is forbidden by either a federal or state statute,” the privilege “is expressly conditional, not absolute.” (Marylander v. Superior Court (2000) 81 Cal.App.4th 1119, 1126.) Because disclosure is not expressly barred here, the privilege is conditional. The privilege “must be applied conditionally on a clear showing that disclosure is against the public’s interest” based on the circumstances presented. (California State University v. Superior Court (2001) 90 Cal.App.4th 810, 832, quoting CBS, Inc. v. Block (1986) 42 Cal.3d. 646, 656; and see County of Orange v. Superior Court (2000) 79 Cal.App.4th 759, 763; Suarez v. Office of Administrative Hearings (2004) 123 Cal.App.4th 1191, 1195.) DFEH contends public interests such as maintaining the confidentiality of its analysis of the claims and its discretionary decision-making, thereby undermining its ability to perform its duties, and preserving an uninhibited exchange of information outweigh any countervailing consequences in denying Defendants’ motion. DFEH further contends Defendants’ failure to offer any evidence of prosecutorial bias thus far in the case prevents a ruling in their favor. Preliminarily, to the extent any of the information DFEH contends is protected by the official information privilege was shared in any fashion with real parties, their counsel, or any other third party, the privilege is waived. As for information DFEH has not shared with real parties, their counsel, or third parties unrelated to this case, the issue is whether the public interest in maintaining the confidentiality of the information outweighs the necessity for disclosure in the interest of justice. As held in People v. Montes (2014) 58 Cal.4th 809, “a showing of ‘plausible justification’ [for the discovery at issue] requires a defendant to ‘show by direct or circumstantial evidence that prosecutorial discretion was exercised with intentional and invidious discrimination in his case.’” (Id. at 829, quoting People v. Keenan (1988) 46 Cal.3d MINUTES Page 4 of 9 DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING VS CATHY'S BCV-18-102633 CREATIONS, INC. 478, 506; and see People v. Superior Court (1977) 70 Cal.App.3d 341, 344 (same showing required in civil prosecutions).) “[A]bsent some substantial and credible showing of invidious discrimination, disclosure of official investigative material is against the public interest.” (People v. Superior Court, supra, 70 Cal.App.3d 344.) The DFEH has conceded in this case that Defendant Miller, as the owner of Defendant Tastries, has a sincerely held religious belief that is protected by California and federal Constitutions, and her refusal to create a wedding cake for real parties in interest arose from that belief. Rather than issue real parties a right-to-sue letter, which is the most common response to DFEH complaints, the DFEH nonetheless chose to pursue this case. In light of the fact that the DFEH has a duty to protect religious discrimination, one could arguably conclude that implicit in the DFEH’s decision to prosecute Defendants is the DFEH’s determination that the real parties’ rights supersede those of Defendants. Additionally, DFEH has shared certain information and documents with real parties in interest, a point that DFEH concedes in arguing the applicability of the attorney-client privilege. If real parties are privy to the information and evidence DFEH obtained during its investigation and discharge of its role as neutral fact-finder, it would be unfair and unjust to bar Defendants’ access to such information and evidence. As stated by the United States Supreme Court and persuasive here, “since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense.” (U.S. Reynolds (1953) 345 U.S. 1, 12.) California discovery statutes are to be construed liberally in favor of disclosure unless statutory or public policy considerations clearly prohibit it. (Shepherd v. Superior Court (1976) 17 Cal. 3d 107, 118, overruled on other grounds in People v. Holloway (2004) 33 Cal.4th 96, 131.) In balancing Defendants’ ability to pursue a Masterpiece defense against the stated public interests, the Court concludes Defendants should be permitted to inquire into whether the exercise of prosecutorial discretion is motivated by an impermissible unconstitutional bias. Put another way, Defendants are entitled to confirm the DFEH has complied with its obligation toward religious neutrality. The Court concludes that Defendants’ right to pursue their defense combined with the reality that there is no other means by which they can obtain the information at issue outweighs the DFEH’s desire to maintain the confidentiality of its investigation. Discovery at Issue While the Court concludes the official information privilege does not bar production here, the Court is cognizant of the fact that the information at issue may remain protected under the attorney work product doctrine. Code of Civil Procedure section 2018.030 defines work product, distinguishing between work product that is absolutely privileged and work product other than an attorney's mental impressions, which is entitled only to qualified protection: (a) A writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances. (b) The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice. Generally speaking, “a court may not require disclosure of information claimed to be privileged in order to rule on a claim of privilege. In camera review of privileged documents is generally prohibited because ‘the privilege is absolute and disclosure may not be ordered, without regard to relevance, necessity or any other particular circumstances peculiar to the case.’ [Citations omitted.]” (OXY Res. California LLC v. Superior Court (2004) 115 Cal.App.4th 874, 896.) This is in line with the strictures of Evidence Code section 915(a), which provides that a court “may not require disclosure of information claimed to be privileged under this division or attorney work MINUTES Page 5 of 9 DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING VS CATHY'S BCV-18-102633 CREATIONS, INC. product under subdivision (a) of Section 2018.030 of the Code of Civil Procedure in order to rule on the claim of privilege….” However, “if necessary to determine whether an exception to the privilege applies, the court may conduct an in camera hearing notwithstanding section 915. [Citation.]” (Ibid., italics added.) Generally, in camera hearings should be limited to a determination whether there is an exception to, or waiver of, the privilege, and “whether the exception or waiver depends on the content of the communication. [Citation.]” [Citation.] “[W]here an exception to a privilege depends upon the content of a communication, the court may require disclosure in camera in making its ruling.” [Citation.] (OXY Res. California LLC v. Superior Court, supra, 115 Cal.App.4th at 896.) In contrast, qualified work product can be reviewed in camera. (Code Civ. Proc., § 2018.030 (“[t]he work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice.”).) In line with the above authority, the Court directs DFEH to produce for in camera review all matters it contends constitutes work product within the meaning of Code of Civil Procedure section 2018.030 including but not limited to work product that (1) DFEH and its staff has communicated to or shared in any fashion with third parties, including real parties in interest or their counsel, (2) reflects or documents any statements of others (excluding client), (3) reflects or documents third party communications made to counsel, or (4) contains anything other than thoughts, analysis, impressions as defined by Code of Civil Procedure section 2018.030(b). As to any writings withheld, the DFEH should produce a privilege log. All responses ordered herein shall encompass the entire action, to include the date on which real parties made contact with the DFEH through the present. The Court concludes that DFEH’s role as neutral fact-finder pursuant to the FEHA does not warrant DFEH’s limitation of its responses to only the investigation phase of this action. Special Interrogatories 6 & 7: Defendant Miller asks DFEH to “[d]escribe all actions undertaken by the DFEH as part of its administrative investigation of Eileen and Mireya Rodriguez-Del Rios’ complaint against Defendants, and subsequent civil actions brought against Defendants, through which the DFEH complied with its Constitutional duty to avert religious discrimination,” and “to ensure that none of its actions were motivated by a hostility towards disfavored religious beliefs.” The Court orders DFEH to respond to the following modified version, which combines special interrogatories 6 and 7: What specific measures were taken by DFEH to fulfill the DFEH’s duty under the FEHA to investigate and prosecute real parties’ claim against Miller free of any discrimination against Miller’s religious beliefs from the date on which DFEH received, investigated, and litigated Eileen and Mireya Rodriguez-Del Rios’ complaint to the present. Request for Production of Documents 6-9, 19 & 20: The specific requests for production state: 6. Please produce all DOCUMENTS which evidence the DFEH’S compliance with its Constitutional duty to ensure that none of its actions were motivated by a hostility towards disfavored religious beliefs, with respect to its administrative investigation of Eileen and Mireya Rodriguez-Del Rios' complaint against Defendants, and subsequent civil actions brought against Defendants. MINUTES Page 6 of 9 DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING VS CATHY'S BCV-18-102633 CREATIONS, INC. 7. Please produce all DOCUMENTS which evidence the DFEH’s compliance with its Constitutional duty to avert religious discrimination, with respect to its administrative investigation of Eileen and Mireya Rodriguez-Del Rios’ complaint against Defendants, and subsequent civil actions brought against Defendants. 8. Please produce all DOCUMENTS and COMMUNICATIONS sent between the DFEH and Eileen and Mireya Rodriguez-Del Rio. 9. Please produce all DOCUMENTS and COMMUNICATIONS sent between the DFEH and legal counsel for Eileen and Mireya Rodriguez-Del Rio. 19. Produce all non-privileged DOCUMENTS in your possession, custody, or control relating to Eileen and Mireya Rodriguez-Del Rios which are not being produced in response to other document requests. 20. Produce all non-privileged DOCUMENTS in your possession, custody, or control relating to Defendants which are not being produced in response to other document requests. Keeping in mind the attorney-client privilege and official information privileges have been found inapplicable, DFEH shall produce all responsive documents to the Court for an in camera determination of whether the responsive documents constitute attorney work product in accord with the parameters previously set forth by the court. Depositions: Defendant Miller seeks the deposition testimony of Jon Ichinaga, Timothy Martin, Jenna Kincade, Patrice Doehrn, and Clara Hernandez regarding the administrative investigation and about Miller’s special interrogatory numbers 4, 8-11, and 17. As explained by Miller, Martin is a former DFEH attorney that has appeared in connection with this action, while Ichinaga and Kincade are former DFEH attorneys unconnected with this action. Doehrn and Hernandez are DFEH investigators. The deposition questions at issue state: 4. Identify … every individual involved with or in the DFEH’s decision to apply ex parte for injunctive relief on December 13, 2017, in California Superior Court. 8. For each individual identified in response to Special Interrogatory Nos. 2 and 3 [(DFEH employees working on the investigation and/or the litigation)], identify whether they approve or disapprove of the legalization of same-sex marriage. 9. For each individual identified in response to Special Interrogatory Nos. 2 and 3, identify whether they approve or disapprove of tolerating the beliefs of others who generally disapprove of same-sex marriage. 10. For each individual identified in response to Special Interrogatory No. 8 who approves of tolerating the same-sex marriage beliefs of others, identify the boundaries of that toleration, including whether that includes permitting them to enter the marketplace but decline to participate in same-sex weddings. MINUTES Page 7 of 9 DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING VS CATHY'S BCV-18-102633 CREATIONS, INC. 11. For each individual identified in response to Special Interrogatory Nos. 2 and 3, explain why they were assigned to the administrative investigation or action. 17. State whether the DFEH corresponded or otherwise engaged in any communications with representatives from any non-governmental organization or with any individual regarding a possible claim against Tastries before filing this action. If so, describe in detail the nature and substance of that communication; identify the name, title, address, and telephone number for that representative or individual; the date(s) on which the correspondence or communication took place; and the individual who initiated the communication. Numbers 2 and 3 ask DFEH to “[i]dentify by name, title, and relationship to the investigation, every individual involved with or in the DFEH’s administrative investigation of Eileen and Mireya Rodriguez-Del Rios’ complaint against Defendants, to which the DFEH assigned the case no. 935123-315628,” and “[i]dentify by name, title, and relationship to the action, every individual involved with or in the DFEH’s civil action actions against Defendants, which the California Superior Court has assigned the case nos. BCV-17-102855 and BCV-18-102633,” respectively. The Court denies the motion as to special interrogatories 8, 9, and 10 based on its conclusion the questions invade the privacy rights of these individuals. The DFEH employees’ personal beliefs bear no relation to the exercise of their public function. The Court grants the motion as to special interrogatories 4, 11, and 17. The depositions of the named individuals shall be overseen by a referee for purposes of determining whether the questions seek information protected as attorney work-product. The Court overrules DFEH’s objection to paragraph 10 of Attorney Trissell’s declaration and sustains Defendants’ objections. Case Management Conference set on March 19, 2020 is continued to March 27, 2020 at 8:30 a.m. in Department 11. Copy of tentative ruling mailed to all parties as stated on the attached certificate of mailing. FUTURE HEARINGS: March 27, 2020 1:30 PM Further Case Management Conference Lampe, David R. Bakersfield Department 11 March 27, 2020 1:30 PM Further Hearing - Pre-Disposition Lampe, David R. Bakersfield Department 11 MINUTES FINALIZED BY: VERONICA LANCASTER ON: MARCH 06, 2020 MINUTES Page 8 of 9 DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING VS CATHY'S BCV-18-102633 CREATIONS, INC. DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING VS CATHY'S CREATIONS, INC. BCV-18-102633 CERTIFICATE OF MAILING The undersigned, of said Kern County, certify: That I am a Deputy Clerk of the Superior Court of the State of California, in and for the County of Kern, that I am a citizen of the United States, over 18 years of age, I reside in or am employed in the County of Kern, and not a party to the within action, that I served the Minutes dated March 06, 2020 attached hereto on all interested parties and any respective counsel of record in the within action by depositing true copies thereof, enclosed in a sealed envelope(s) with postage fully prepaid and placed for collection and mailing on this date, following standard Court practices, in the United States mail at Bakersfield California addressed as indicated on the attached mailing list. Date of Mailing: March 06, 2020 Place of Mailing: Bakersfield, CA I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Tamarah Harber-Pickens CLERK OF THE SUPERIOR COURT Date: March 06, 2020 Signed: 3/6/2020 04:10 PM By: Veronica Lancaster, Deputy Clerk MAILING LIST GREGORY J MANN CHARLES S LIMANDRI 320 4TH STREET SUITE 1000 LAW OFC LOS ANGELES CA 90013 PO BOX 9520 RANCHO SANTA FE CA 92067- Certificate of Mailing Page 9 of 9