Filed 4/8/20 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

CHRISTYNNE LILI WRENE WOOD,

Petitioner,

v.

THE SUPERIOR COURT OF SAN DIEGO 

COUNTY,

Respondent;

CFG JAMACHA, LLC, et al.,

Real Parties in Interest.

 D076325

 (San Diego County Super. Ct.

 No. 37-2018-00019066-CU-CRCTL)

ORDER MODIFYING OPINION

NO CHANGE IN JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on March 13, 2020, be modified as 

follows:

On pages 5 and 6, in fifth sentence of the paragraph beginning, "After the parties 

were unable," the phrase "Crunch's public statements" is replaced with "DFEH's public 

statements," so that the modified paragraph reads as follows:

After the parties were unable to resolve their dispute informally, 

Crunch filed a motion to compel production of documents, including 
2

the email at issue. Crunch contended that the documents were 

relevant, discoverable, and nonprivileged. Crunch disputed that an 

attorney-client relationship could exist between the DFEH and 

Wood, given DFEH's governmental function. Among other things, 

Crunch cited DFEH's letters to Crunch during its investigation of 

Wood's complaint, where it stated that " 'DFEH serves as a neutral 

fact-finder and represents the state of California rather than the 

complaining party.' " Crunch asserted these letters were consistent 

with DFEH's public statements, which state, " 'The DFEH will 

conduct an impartial investigation. [DFEH] is not an advocate for 

either the person complaining or the person complained against. 

[DFEH] represents the state.' " Crunch argued that DFEH may act 

only on behalf of the state and, similar to a criminal prosecutor, it 

could not compromise its impartiality by undertaking to represent a 

specific individual. Crunch concluded that Wood could not show 

that her communications with DFEH were for the purpose of 

securing legal advice or retaining DFEH lawyers as her counsel. 

There is no change in the judgment. 

HUFFMAN, Acting P. J.

Copies to: All parties
Filed 3/13/20 (unmodified version)

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

CHRISTYNNE LILI WRENE WOOD,

Petitioner,

v.

THE SUPERIOR COURT OF SAN DIEGO 

COUNTY,

Respondent;

CFG JAMACHA, LLC, et al.,

Real Parties in Interest.

 D076325

 (San Diego County Super. Ct.

 No. 37-2018-00019066-CU-CRCTL)

ORIGINAL PROCEEDINGS in mandate. Joel R. Wohlfeil, Judge. Petition 

denied.

ACLU Foundation of San Diego & Imperial Counties, David Loy, Melissa 

DeLeon; Nixon Peabody, Michael Lindsay, Seth D. Levy, Erin Holyoke; ACLU 

Foundation of Southern California, Amanda Goad and Aditi Fruitwala, for Petitioner.

No appearance for Respondent.
2

Liedle, Larson & Vail, Tamara G. Vail and Ryan G. Rupe, for Real Parties in 

Interest CFG Jamacha, LLC and John Romeo.

Xavier Becerra, Attorney General, Michael L. Newman, Assistant Attorney 

General, Cherokee DM Melton and Anthony V. Seferian, Deputy Attorneys General, for

Real Party in Interest California Department of Fair Employment and Housing.

Petitioner Christynne Lili Wrene Wood contacted the California Department of 

Fair Employment and Housing (DFEH) to report alleged gender discrimination by her 

Crunch fitness club, which is owned and operated by CFG Jamacha, LLC and John 

Romeo (collectively, Crunch). After an investigation, DFEH filed a lawsuit against 

Crunch alleging violations of the Unruh Civil Rights Act (Civ. Code, § 51) for unlawful 

discrimination on the basis of gender identity or expression. Wood intervened as a 

plaintiff in the lawsuit. During discovery, Crunch requested that Wood produce all 

communications with DFEH relating to Crunch. As relevant here, Wood refused to 

produce one such communication, a prelitigation email she sent to DFEH lawyers

regarding her DFEH complaint, on the grounds of attorney-client privilege. Crunch 

moved to compel production of the email, and the trial court granted the motion. 

Wood filed a petition for writ of mandate in this court. She argued that the trial 

court erred by overruling her objection based on the attorney-client privilege and 

compelling production of the email. We summarily denied the petition. The California 

Supreme Court granted review and transferred the matter back to this court with 

directions "to vacate [our] order denying mandate and to issue an order directing the 
3

superior court to show cause why the relief sought in the petition should not be granted." 

We issued the order to show cause as directed, and these proceedings followed.

We conclude that Wood has not shown the attorney-client privilege applies to the 

email at issue. A prima facie showing of privilege requires that the communication be 

made in the course of an attorney-client relationship. (See Evid. Code, § 952; Costco 

Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733 (Costco).) DFEH lawyers 

have an attorney-client relationship with the State of California. Wood has not shown 

DFEH lawyers formed an attorney-client relationship with her. As such, any 

communications between Wood and DFEH lawyers were not made in the course of an 

attorney-client relationship and were not privileged. We therefore deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

According to DFEH's operative complaint, Wood is a member of a Crunch fitness 

club in El Cajon, California. She is a transgender woman. In 2016, she began physically 

transitioning from male to female. After she was harassed by another member in the 

Crunch men's locker room, Wood provided Crunch with medical verification of her 

transition and requested use of the women's locker room. Crunch declined Wood's 

request but told her she would be allowed to use Crunch's more exclusive "platinum"

men's locker room. Wood reluctantly agreed and continued patronizing the gym. The 

next year, Wood legally changed her name and gender marker to female. She repeated 

her request to Crunch that she be allowed to use the women's locker room. Crunch again 

declined. It told Wood that she would need to complete " 'sex-reassignment surgery' " in 

order to use the women's locker room. However, after Wood was again harassed by 
4

another member, this time in the platinum men's locker room, Crunch consented to 

Wood's use of the women's locker room. 

Based on these allegations, DFEH alleged a cause of action against Crunch for 

unlawful discrimination based on gender identity and expression. (Civ. Code, § 51, 

subds. (b), (e)(5).) On behalf of Wood, DFEH sought statutory damages of $4,000 for 

each time Wood was denied access to the women's locker room. (Id., § 52, subd. (a).) In 

the alternative, DFEH sought actual damages for Wood's out-of-pocket expenses and 

emotional distress. 

DFEH also sought injunctive relief, including that Crunch (1) cease and desist 

discrimination against Wood and all other current and prospective members based on 

gender identity, gender expression, or any other protected characteristic; (2) provide 

Wood and all other current and prospective members access to the locker room and 

restroom facilities that accord with their gender identity; (3) not retaliate against Wood 

for her complaint of discrimination; (4) post a copy of the court's judgment in an area 

visible to all current and prospective members; (5) provide recurring antidiscrimination 

training of at least two hours to all owners, managers, and employees at Crunch, with 

special emphasis on sex and gender discrimination; (6) post a copy of DFEH's "Unruh 

Civil Rights Act Fact Sheet" in an area visible to all current and prospective members;

(7) modify all Crunch nondiscrimination policies to comply with applicable California 

and federal law, including an explicit statement that current and prospective members 

shall have access to locker room and restroom facilities that accord with their gender 

identity; (8) develop, implement, and distribute a written policy and procedures for 
5

handling and documenting member complaints and Crunch's responses; and (9) provide 

DFEH with recurring reports certifying Crunch's compliance. DFEH demanded its 

reasonable attorney fees and costs. 

Wood, represented by her own counsel, filed a complaint in intervention. 

(Gov. Code, § 12965, subd. (a).) Based on a similar set of factual allegations, Wood 

alleged causes of action against Crunch for unlawful discrimination, negligence, and 

negligent hiring and supervision. In addition to the relief requested by DFEH, Wood 

requested punitive damages and her own reasonable attorney fees and costs. 

As noted, during discovery, Crunch requested that Wood produce all 

communications with DFEH relating to Crunch. Wood objected to the request based on, 

among other grounds, the attorney-client privilege. Wood eventually produced certain 

documents and withheld others, including the email at issue in this proceeding. In a 

privilege log, Wood described the email as an "Email from Christynne Wood to Nelson 

Chan and Jeanette Hawn regarding Ms. Wood's DFEH complaint." She asserted 

objections based on the attorney-client privilege, the official information privilege, and 

the deliberative process privilege. The email was sent in June 2017, during DFEH's 

investigation, after Wood had filed an administrative complaint with DFEH, but before

DFEH filed suit against Crunch. Chan and Hawn are DFEH lawyers.

After the parties were unable to resolve their dispute informally, Crunch filed a 

motion to compel production of documents, including the email at issue. Crunch 

contended that the documents were relevant, discoverable, and nonprivileged. Crunch 

disputed that an attorney-client relationship could exist between the DFEH and Wood, 
6

given DFEH's governmental function. Among other things, Crunch cited DFEH's letters 

to Crunch during its investigation of Wood's complaint, where it stated that " 'DFEH 

serves as a neutral fact-finder and represents the state of California rather than the 

complaining party.' " Crunch asserted these letters were consistent with Crunch's public 

statements, which state, " 'The DFEH will conduct an impartial investigation. [DFEH] is 

not an advocate for either the person complaining or the person complained against. 

[DFEH] represents the state.' " Crunch argued that DFEH may act only on behalf of the 

state and, similar to a criminal prosecutor, it could not compromise its impartiality by 

undertaking to represent a specific individual. Crunch concluded that Wood could not 

show that her communications with DFEH were for the purpose of securing legal advice 

or retaining DFEH lawyers as her counsel. 

Crunch further contended that the deliberative process and official information 

privileges did not apply. The deliberative process privilege was inapplicable in litigation 

unrelated to a review of agency action. The official information privilege was only a 

qualified privilege, and the necessity for preserving the confidentiality of the 

communication did not outweigh the necessity for disclosure in the interest of justice. 

Wood opposed the motion. She claimed the attorney-client privilege applied 

because "at all relevant times, the DFEH was acting in a legal capacity and Ms. Wood 

believed the DFEH represented her." In a declaration submitted with her opposition, 

Wood stated, "Throughout communications with the DFEH, I thought the DFEH was 

helping me with a legal dispute and believed that all conversations I had with DFEH 

lawyers were confidential. During the times I spoke with DFEH lawyers and DFEH 
7

employees, I thought that lawyers had to maintain the confidences of people they were 

speaking to." In addition, in a deposition, Wood asserted that a DFEH lawyer 

represented her, along with her retained counsel. 

Wood relied on federal cases finding an attorney-client privilege between the U.S. 

Equal Employment Opportunity Commission (EEOC) and complaining parties who 

claimed to seek legal advice from the EEOC. She distinguished the situation of criminal 

prosecutors because "prosecutors do not file cases on behalf of real parties in interest[] 

and do not seek victim-specific relief."

Wood also contended that the official information privilege protected the email at 

issue. (See Evid. Code, § 1040.) She acknowledged the privilege was not absolute, but 

she claimed that the need for confidentiality outweighed the need for disclosure in 

litigation. She argued, "It is in the public interest to allow claimants like Ms. Wood to 

file claims with the DFEH confidentially in order to encourage the reporting of 

discrimination and facilitate an open and truthful investigative process."

In a tentative ruling, the court expressed skepticism that the attorney-client 

privilege applied, though it appeared unaware that Wood was communicating directly 

with DFEH lawyers. Regarding the official information privilege, the court weighed the 

need for disclosure against the need for confidentiality and concluded that the documents 

should be produced. 

At the hearing on Crunch's motion to compel, DFEH's counsel clarified that the 

email at issue (as well as another withheld email) were communications directly between 

Wood and DFEH lawyers. She argued, "[T]here is, in fact, attorney-client privilege 
8

between DFEH lawyers and aggrieved individuals in general." Both DFEH counsel and 

Wood's counsel emphasized the federal cases finding that communications with the 

EEOC may be privileged. Following this argument, the court was still unpersuaded that 

the attorney-client privilege applied. But, apparently to assess the official information 

privilege, the court accepted in camera review of the emails. 

In a subsequent minute order, the court wrote that, "in evaluating the privileges

asserted by DFEH and Wood, [it] has strived to balance [Crunch's] need to obtain the 

materials to defend DFEH and Wood's allegations with Wood's interest to preserve her 

privacy, to the extent she hasn't waived her right to do so by virtue of her allegations." 

As to the email at issue here, the court overruled Wood's objections and ordered the email

produced. (As to the other email, the court sustained Wood's objections without further 

explanation.) 

Wood filed a petition for writ of mandate challenging the court's order compelling 

production of the email. After we summarily denied the petition, and the Supreme Court 

granted review and transferred the matter back to this court, we issued an order to show 
9

cause why the relief sought in Wood's petition should not be granted. Crunch and DFEH 

have participated in these proceedings as real parties in interest.1

DISCUSSION

I

Nature and Scope of the Attorney-Client Privilege

"The attorney-client privilege, set forth at Evidence Code section 954, confers a 

privilege on the client 'to refuse to disclose, and to prevent another from disclosing, a 

confidential communication between client and lawyer . . . .' The privilege 'has been a 

hallmark of Anglo-American jurisprudence for almost 400 years.' [Citation.] Its 

fundamental purpose 'is to safeguard the confidential relationship between clients and 

their attorneys so as to promote full and open discussion of the facts and tactics 

surrounding individual legal matters. [Citation.] . . . [¶] Although exercise of the 

privilege may occasionally result in the suppression of relevant evidence, the Legislature 

of this state has determined that these concerns are outweighed by the importance of 

preserving confidentiality in the attorney-client relationship. As [the Supreme Court] has 

stated: "The privilege is given on grounds of public policy in the belief that the benefits 

1 DFEH filed a similar petition for writ of mandate, which we summarily denied as 

well. (Dept. of Fair Employment & Housing v. Superior Court (Aug. 20, 2019, 

D076317).) DFEH filed its own petition for review, but the Supreme Court denied the 

petition. (Dept. of Fair Employment & Housing v. Superior Court (Oct. 9, 2019, 

S257728).) In its return to Wood's petition, filed in this proceeding, DFEH relies on 

exhibits to its own petition for writ of mandate. DFEH has not filed a request for judicial 

notice or attempted in any other proper manner to bring those exhibits to our attention in 

this proceeding. We therefore will not consider them. Nonetheless, it does not appear 

that considering the exhibits would have a material effect on our conclusions here, given 

DFEH's verified factual statements in its return, which cover similar ground.
10

derived therefrom justify the risk that unjust decisions may sometimes result from the 

suppression of relevant evidence." [Citations.]' [Citation.] '[T]he privilege is absolute 

and disclosure may not be ordered, without regard to relevance, necessity or any 

particular circumstances peculiar to the case.' " (Costco, supra, 47 Cal.4th at p. 732.) 

"The rule excluding the testimony of an attorney as to confidential 

communications made to him by his client must be strictly construed, as it has a tendency 

to suppress relevant facts that may be necessary for a just decision." (Brunner v. 

Superior Court (1959) 51 Cal.2d 616, 618.) "The privilege is also to be strictly construed 

'where the [attorney-client] relationship is not clearly established.' " (Uber Technologies, 

Inc. v. Google LLC (2018) 27 Cal.App.5th 953, 967.)

For purposes of the privilege, a "client" is "a person who . . . consults a lawyer for 

the purpose of retaining the lawyer or securing legal service or advice from him in his 

professional capacity . . . ." (Evid. Code, § 951.) A "confidential communication 

between client and lawyer," which is protected by the privilege, is "information 

transmitted between a client and his or her lawyer in the course of that relationship and in 

confidence . . . ." (Id., § 952.) The client is the holder of the privilege (id., § 953) and 

may prevent disclosure of a privileged communication by another person (id., § 954). 

"The statute treats the term 'confidential communication between client and 

lawyer' as one that requires further definition, and the definition it provides extends only 

to that information transmitted 'in the course of [the attorney-client] relationship.'

(Evid. Code, § 952, italics added.) The same definition also refers to 'those who are 

present to further the interest of the client in the consultation' and 'the accomplishment of 
11

the purpose for which the lawyer is consulted.' (Ibid., italics added.) A similar focus is 

plain in related definitions of the Evidence Code. For example, the statute defines 'client'

as someone who 'consults a lawyer for the purpose of retaining the lawyer or securing 

legal service or advice from him in his professional capacity.' (Id., § 951.) And a 

'confidential communication between client and lawyer,' according to the statute, 

'includes a legal opinion formed and the advice given by the lawyer in the course of that 

relationship.' (Id., § 952.) These references cut against an understanding of the privilege 

in this context as encompassing every conceivable communication a client and attorney 

share, and instead link the privilege to communications that bear some relationship to the 

provision of legal consultation." (Los Angeles County Bd. of Supervisors v. Superior 

Court (2016) 2 Cal.5th 282, 294-295 (Los Angeles County).)

Indeed, the statutes make clear that the privilege does not apply simply because a 

person discusses a legal matter with an attorney. "Significantly, a communication is not 

privileged, even though it may involve a legal matter, if it has no relation to any 

professional relationship of the attorney with the client. [Citation.] Moreover, it is not 

enough that the client seek advice from an attorney; such advice must be sought from the 

attorney 'in his professional capacity.' ([Evid. Code,] § 951.)" (People v. Gionis (1995) 

9 Cal.4th 1196, 1210 (Gionis); accord, City & County of San Francisco v. Superior Court 

(1951) 37 Cal.2d 227, 235 ["[O]nly communications made to an attorney in the course of 

professional employment are privileged."]; League of California Cities v. Superior Court 

(2015) 241 Cal.App.4th 976, 989.)
12

It is well-settled that a public entity enjoys an attorney-client relationship with its 

lawyers and the attorney-client privilege protects communications made in the course of 

that relationship. (See, e.g., Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 371

(Roberts).) For example, "[a] city council needs freedom to confer with its lawyers 

confidentially in order to obtain adequate advice, just as does a private citizen who seeks 

legal counsel, even though the scope of confidential meetings is limited by this state's 

public meeting requirements. [Citations.] The public interest is served by the privilege 

because it permits local government agencies to seek advice that may prevent the agency 

from becoming embroiled in litigation, and it may permit the agency to avoid 

unnecessary controversy with various members of the public." (Id. at pp. 380-381.)

It is also well-settled that lawyers who prosecute actions, in an exercise of a public 

entity's police power, occupy a unique position in this context. For example, a district 

attorney "is not an 'attorney' who represents a 'client' as such. He is a public officer, 

under the direct supervision of the Attorney General [citation], who 'represents the

sovereign power of the people of the state, by whose authority and in whose name all 

prosecutions must be conducted.' " (Shepherd v. Superior Court (1976) 17 Cal.3d 107, 

122 (Shepherd).) "The prosecutor is a public official vested with considerable 

discretionary power to decide what crimes are to be charged and how they are to be 

prosecuted. [Citations.] In all his activities, his duties are conditioned by the fact that he 

'is the representative not of any ordinary party to a controversy, but of a sovereignty 

whose obligation to govern impartially is as compelling as its obligation to govern at all; 

and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but 
13

that justice shall be done. As such, he is in a peculiar and very definite sense the servant 

of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.' " 

(People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 266 (Greer).)

"One of the reasons often cited for the institution of public prosecutions is that 

'Americans believed that an officer in a position of public trust could make decisions 

more impartially than could the victims of crimes or other private complainants,' persons 

who often brought prosecutions under the older English system of criminal justice. 

[Citations.] This advantage of public prosecution is lost if those exercising the 

discretionary duties of the district attorney are subject to conflicting personal interests 

which might tend to compromise their impartiality. In short, the prosecuting attorney ' "is 

the representative of the public in whom is lodged a discretion which is not to be 

controlled by the courts, or by an interested individual." ' " (Greer, supra, 19 Cal.3d at 

p. 267.)

These principles, moreover, are not limited to criminal prosecutions. (People ex 

rel. Clancy v. Superior Court (1985) 39 Cal.3d 740, 746 (Clancy).) "Indeed, it is a 

bedrock principle that a government attorney prosecuting a public action on behalf of the 

government must not be motivated solely by a desire to win a case, but instead owes a 

duty to the public to ensure that justice will be done." (County of Santa Clara v. Superior 

Court (2010) 50 Cal.4th 35, 57.) "A fair prosecution and outcome in a proceeding 

brought in the name of the public is a matter of vital concern both for defendants and for 

the public, whose interests are represented by the government and to whom a duty is 
14

owed to ensure that the judicial process remains fair and untainted by an improper 

motivation on the part of attorneys representing the government." (Ibid.)

For example, in actions by state and local agencies to establish paternity and for 

child support, as well as other similar actions, the person benefitted by the action does not 

enjoy an attorney-client relationship with the public entity lawyers prosecuting the action. 

"The statutory scheme empowers the district attorney [now local child support agency, 

see Fam. Code, § 17404] to establish, modify and enforce support obligations 'in the 

name of the county on behalf of the child, children or caretaker parent.' [Citation.] The 

purpose of such actions is to provide a direct procedure for a county to recoup public 

assistance, and to assist parents with limited resources to enforce support obligations so 

that public funds are not again unnecessarily expended. [Citations.] Notwithstanding the 

collateral benefit to the custodial parent, the 'client' in such actions remains the county."

(Monterey County v. Cornejo (1991) 53 Cal.3d 1271, 1284, italics added (Monterey 

County); accord, Jager v. County of Alameda (1992) 8 Cal.App.4th 294, 297.) Family 

Code section 17406 is declarative of existing law, and it provides, "In all actions 

involving paternity or support, including, but not limited to, other proceedings under this 

code, and under Division 9 (commencing with Section 10000) of the Welfare and 

Institutions Code, the local child support agency and the Attorney General represent the 

public interest in establishing, modifying, and enforcing support obligations. No 

attorney-client relationship shall be deemed to have been created between the local child 

support agency or Attorney General and any person by virtue of the action of the local 
15

child support agency or the Attorney General in carrying out these statutory duties." 

(Fam. Code, § 17406, subd. (a).)

II

DFEH Powers and Procedures

The authority of DFEH is found in the Fair Employment and Housing Act (FEHA; 

Gov. Code, § 12900 et seq.). FEHA prohibits discrimination in employment and housing 

accommodations on the basis of protected characteristics, including sex and gender (id., 

§§ 12940 et seq., 12955 et seq.), and it incorporates the Unruh Civil Rights Act's 

prohibitions on discrimination in public accommodations (id., § 12948). These

prohibitions reflect the strong and longstanding public policy of this state to protect the 

right of all persons to seek employment, obtain housing, and otherwise participate in 

public life free of discrimination. (Gov. Code, § 12920; Civ. Code, § 51, subd. (b).) 

"The [Unruh Civil Rights] Act expresses a state and national policy against 

discrimination on arbitrary grounds. [Citation.] Its provisions were intended as an active 

measure that would create and preserve a nondiscriminatory environment in California 

business establishments by 'banishing' or 'eradicating' arbitrary, invidious discrimination 

by such establishments." (Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 167; 

accord, White v. Square, Inc. (2019) 7 Cal.5th 1019, 1025.) FEHA's provisions, 

including the establishment of DFEH, are "an exercise of the police power of the state for 

the protection of the welfare, health, and peace of the people of this state." (Gov. Code,

§ 12920.)
16

Under FEHA, DFEH is tasked with, among other things, receiving, investigating, 

conciliating, mediating, and prosecuting complaints of unlawful discrimination. 

(Gov. Code, § 12930, subd. (f).) Any person who claims to have suffered discrimination 

or other unlawful practice may file a complaint with DFEH. (Id., § 12960, subd. (c).) If 

the complaint alleges facts sufficient to show a violation, DFEH "shall make [a] prompt 

investigation in connection therewith." (Id., § 12963.) The investigation may include 

investigative subpoenas, written interrogatories, requests for deposition, and requests for 

production of documents. (Id., §§ 12963.1, 12963.2, 12963.3, 12963.4.) These 

discovery tools may be enforced by court order. (Id., § 12963.5; see generally Dept. of 

Fair Employment & Housing v. Superior Court (2002) 99 Cal.App.4th 896, 901.) 

If DFEH determines that a violation has occurred, it will attempt to "eliminate the 

unlawful employment practice complained of by conference, conciliation, and 

persuasion." (Gov. Code, § 12963.7, subd. (a).) If this attempt fails, DFEH may, in its 

discretion, "bring a civil action in the name of the department on behalf of the person 

claiming to be aggrieved." (Id., § 12965, subd. (a); see Cal. Code Regs., tit. 2, § 10031, 

subd. (c) [identifying factors].) "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." (Gov. Code, § 12965, subd. (a).) If DFEH 

decides not to file a civil action, the complaining party may file an action in his or her 

own name. (Id., § 12965, subd. (b).)

DFEH maintains a website that, among other things, provides the public with 

information about its practices and procedures. On one page, DFEH provides answers to 
17

frequently asked questions. In response to one question, "Does DFEH represent 

complainants?" DFEH provides the following answer: "No. During the investigation, 

DFEH acts as an objective fact-finder, gathering evidence to determine whether the 

complainant's allegations can be proven. DFEH does not represent either the 

complainant or the respondent. [¶] If the investigation establishes that there is evidence

to support the complainant's allegations, and the parties do not reach a settlement, 

DFEH's Legal Division reviews the case for potential litigation in court. DFEH has 

attorneys who prepare and file cases in court. [¶] When DFEH decides to sue, it files a 

civil lawsuit in the name of the Department of Fair Employment and Housing against the 

employer. DFEH attorneys represent the Department, not the individual complainant. 

The complainant is a real party in interest in the lawsuit. [¶] Although the assigned 

DFEH attorney is not the complainant's personal legal advisor, the complainant's interests 

are important in the litigation, and the complainant receives 100% of any remedies 

recovered, with the exception of attorney fees and costs. DFEH does not charge 

complainants attorney fees or expert witness fees, nor does it take a percentage of any 

award or settlement."2

2 By separate order, we granted Crunch's request for judicial notice of several pages 

from DFEH's website and other DFEH public statements. While we may not judicially 

notice the truth of any statement in these materials, we may take notice of the fact that 

they were made to the public. (See Mangini v. R.J. Reynolds Tobacco Co. (1994) 

7 Cal.4th 1057, 1063-1064; Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 518.)
18

III

Wood's Communication with DFEH Lawyers

Wood contends the trial court erred by granting Crunch's motion to compel

production of an email she sent to DFEH lawyers during their investigation of her 

complaint against Crunch. "A trial court's determination of a motion to compel discovery 

is reviewed for abuse of discretion. [Citation.] An abuse of discretion is shown when the 

trial court applies the wrong legal standard. [Citation.] However, when the facts asserted 

in support of and in opposition to the motion are in conflict, the trial court's factual 

findings will be upheld if they are supported by substantial evidence. [Citations.] The 

party claiming the privilege has the burden of establishing the preliminary facts necessary 

to support its exercise, i.e., a communication made in the course of an attorney-client 

relationship. [Citation.] Once that party establishes facts necessary to support a prima 

facie claim of privilege, the communication is presumed to have been made in confidence 

and 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." (Costco, supra, 47 Cal.4th at p. 733.) 

The central issue in this proceeding is whether Wood's email to DFEH lawyers 

was transmitted in the course of an attorney-client relationship, within the meaning of 

Evidence Code section 952, and was therefore privileged. "The question of whether an 

attorney-client relationship exists is one of law. [Citations.] However, when the 

evidence is conflicting, the factual basis for the determination must be determined before 

the legal question is addressed." (Responsible Citizens v. Superior Court (1993) 
19

16 Cal.App.4th 1717, 1733.) Wood primarily relies on her declaration, where she 

asserted, "Throughout communications with the DFEH, I thought the DFEH was helping 

me with a legal dispute and believed that all conversations I had with DFEH lawyers 

were confidential." She also claimed in a deposition that DFEH represents her in the 

current litigation, though DFEH consistently denied such representation in its discovery 

responses. In this court, Wood's argument is that, regardless whether DFEH represented 

her, the attorney-client privilege should apply to her communication with DFEH lawyers 

because she was seeking legal advice from them. For its part, DFEH asserts that its

lawyers "provided legal advice to Wood" and "shared DFEH's legal analysis with her in 

relation to her DFEH complaint against Crunch Fitness."3

Ordinarily, when a party seeks legal advice from a lawyer, and the lawyer 

provides such advice, an attorney-client relationship is formed. (Beery v. State Bar 

(1987) 43 Cal.3d 802, 811.) The formation of such a relationship imposes fiduciary 

duties, including a duty of care, on the attorney. (Streit v. Covington & Crowe (2000) 

82 Cal.App.4th 441, 446.) But here, as Wood acknowledges, she did not have an 

attorney-client relationship with DFEH in this sense. She does not claim that DFEH 

lawyers represented her or served as her personal legal counsel, and she does not seek to 

3 DFEH's factual assertions were not before the trial court when it ruled on Crunch's 

motion to compel. We could simply disregard them. (See Pomona Valley Hospital 

Medical Center v. Superior Court (2013) 213 Cal.App.4th 828, 835, fn. 5 ["Writ review 

does not provide for consideration of evidence not before respondent court at the time of 

its ruling."].) But we exercise our discretion to consider them here, because we foresee 

no prejudice to Crunch (or Wood) and these assertions help to provide a complete picture 

of the factual circumstances at issue in this important matter.
20

impose any fiduciary duties on them. Similarly, consistent with its public and private 

statements, DFEH admits, "At all relevant times, Hawn and Chan were acting in their 

capacity as DFEH attorneys in the process of assessing Wood's allegations and her 

claims under the Unruh Act." (Italics added.) 

Wood contends, instead, that the attorney-client relationship necessary for the 

privilege is not the same attorney-client relationship that exists in other contexts. She 

argues that the attorney-client privilege applies whenever a person speaks with a lawyer 

about a legal matter. We disagree with this interpretation of the attorney-client privilege.

The attorney-privilege requires something more than simply speaking to an 

attorney about a legal matter. (Los Angeles County, supra, 2 Cal.5th at pp. 294-295; 

Gionis, supra, 9 Cal.4th at p. 1210.) To be a client for purposes of the privilege, a person 

must "consult[] a lawyer for the purpose of retaining the lawyer or securing legal service 

or advice from him in his professional capacity . . . ." (Evid. Code, § 951, italics added.) 

Likewise, a privileged communication must be "transmitted between a client and his or 

her lawyer in the course of that relationship . . . ." (Id., § 952, italics added.)

As our Supreme Court has explained, "We cannot endorse the Court of Appeal's 

apparent view that the attorney-client privilege applies whenever issues touching upon 

legal matters are discussed with an attorney. That has never been the law. Significantly, 

a communication is not privileged, even though it may involve a legal matter, if it has no 

relation to any professional relationship of the attorney with the client. [Citation.] 

Moreover, it is not enough that the client seek advice from an attorney; such advice must 
21

be sought from the attorney 'in his professional capacity.' ([Evid. Code,] § 951.)" 

(Gionis, supra, 9 Cal.4th at p. 1210.)

In Gionis, our Supreme Court considered whether the attorney-client privilege 

covered statements made by the defendant to a lawyer after the lawyer told the defendant 

he would not represent him. (Gionis, supra, 9 Cal.4th at p. 1209.) Although the Supreme 

Court did not announce "a bright line rule that any communication made after an 

attorney's refusal of representation is unprivileged as a matter of law," it was nonetheless 

persuaded "that a person could have no reasonable expectation of being represented by an 

attorney after the attorney's explicit refusal to undertake representation. [Citation.] 

Moreover, evidence of an attorney's express refusal of representation may give rise to a 

reasonable inference that, in continuing to speak to the attorney, the person is not 

thereafter consulting with the attorney for advice 'in his professional capacity.' " (Id. at 

p. 1211.)

Similarly here, the DFEH has consistently maintained that it does not represent 

complainants in general or Wood in particular. On its public website, it disclaims any 

such representation: During its investigation, "DFEH does not represent either the 

complainant or the respondent." During litigation, "DFEH attorneys represent the 

Department, not the individual complainant." In its letters notifying Crunch of Wood's 

complaint, DFEH stated that it " 'serves as a neutral fact-finder and represents the state of 

California rather than the complaining party [i.e., Wood].' " DFEH lawyers are counsel 

of record only for the Department, and their discovery responses in the underlying 

litigation reflect that fact. These statements are consistent with DFEH's role as a civil 
22

enforcement agency of the government. (See Monterey County, supra, 53 Cal.3d at 

p. 1284; Clancy, supra, 39 Cal.3d at p. 746; see also Greer, supra, 19 Cal.3d at p. 266; 

Shepherd, supra, 17 Cal.3d at p. 122.) The fact that DFEH has consistently disclaimed 

representation strongly weighs against the finding of an attorney-client relationship here. 

(See Gionis, supra, 9 Cal.4th at p. 1211; see also Fox v. Pollack (1986) 181 Cal.App.3d 

954, 959 ["Except for those situations where an attorney is appointed by the court, the 

attorney-client relationship is created by some form of contract, express or implied, 

formal or informal."].)

Wood has not shown that any other basis exists for an attorney-client relationship 

that would support the application of the privilege. Wood points out that the privilege 

protects a prospective client's communications with a lawyer even if the lawyer is never 

retained. (See, e.g., Gionis, supra, 9 Cal.4th at p. 1208.) But, as discussed above, DFEH 

lawyers cannot represent Wood. Wood was not a prospective client seeking 

representation, so she cannot claim the privilege on this basis. Outside the context of a 

prospective client, "an actual attorney-client relationship is required to sustain claims of 

the privilege." (Tuft et al., Cal. Practice Guide: Professional Responsibility (The Rutter 

Group 2019) ¶ 3:26.2.) Wood has not established an actual attorney-client relationship 

for reasons we have already discussed.

Wood relies on two Court of Appeal opinions that broadly state that an attorneyclient relationship is formed whenever a person consults an attorney for the purpose of 

obtaining the attorney's legal advice. (See Edwards Wildman Palmer LLP v. Superior 

Court (2014) 231 Cal.App.4th 1214, 1226 (Edwards Wildman); Kerner v. Superior Court 
23

(2012) 206 Cal.App.4th 84, 116-117 (Kerner).) Our Supreme Court in Gionis held, 

however, that such a broad proposition is not always correct. (Gionis, supra, 9 Cal.4th at 

p. 1210.) Our analysis of the statutes above confirms that fact. (See Evid. Code, §§ 951, 

952.) And this conclusion makes sense. The attorney-client privilege is not an end in 

itself. It is enforced because it is a necessary prerequisite for lawyers to fulfill the 

significant duties imposed by the attorney-client relationship. Wood and DFEH seek to 

decouple the privilege from the attorney-client relationship itself. Their efforts are 

unpersuasive.

In any event, the opinions cited by Wood are inapposite. Edwards Wildman

considered whether "the attorney-client privilege applies to intrafirm communications 

between attorneys concerning disputes with a current client, when that client later sues 

the firm for malpractice." (Edwards Wildman, supra, 231 Cal.App.4th at p. 1219.) The 

court found that it could apply, but "only when a genuine attorney-client relationship 

exists" (id. at p. 1234), i.e., not whenever a legal matter is discussed with a fellow 

attorney. Kerner considered whether the privilege covered communications between two 

attorneys unrelated to a current or former client. (Kerner, supra, 206 Cal.App.4th at 

p. 92.) The attorney who claimed to be the client testified that she sought legal advice 

from the other attorney regarding various litigation matters. (Id. at p. 118.) The other 

attorney stated that he advised the first attorney on legal issues and communicated on her 

behalf with other legal counsel. (Ibid.) Under these circumstances, the Court of Appeal 

held that the first attorney had established the existence of an attorney-client relationship 

with the second, and the privilege applied. (Id. at pp. 118-119.) Given their factual
24

dissimilarities, Wood's reliance on these opinions is unpersuasive. And, at base, they 

confirm that an attorney-client relationship is necessary for the privilege to apply, a 

relationship that is lacking here.

Wood argues that her relationship with DFEH is sufficient to invoke the attorneyclient privilege because DFEH investigates complaints by members of the public like

Wood, it seeks relief on their behalf, and its activities embody California's strong public 

policy against unlawful discrimination. But, given that DFEH lawyers do not represent 

complainants like Wood, this mere convergence of interests is insufficient to establish an 

attorney-client relationship for purposes of the privilege. Crime victims have a similar 

convergence of interests with prosecutors, and prosecutors routinely seek specific relief 

on behalf of victims in the form of restitution, but no attorney-client relationship exists 

between them. (Greer, supra, 19 Cal.3d at p. 266; Shepherd, supra, 17 Cal.3d at p. 122.) 

Similarly, local child support agencies seek and enforce specific relief—child and spousal 

support—on behalf of members of the public, but no attorney-client relationship exists 

there either. (Monterey County, supra, 53 Cal.3d at p. 1284.) It seems logical that, in all 

of these situations, the protection of the attorney-client privilege would lead to more 

candor from the benefitted parties and more effective prosecution efforts, as the DFEH 

asserts. But that result, however positive, cannot create an attorney-client relationship 

where none exists.

Moreover, to the extent the necessity for secrecy motivates Wood and DFEH, the 

official information privilege under Evidence Code section 1040 is the government's 

exclusive means for protecting such information. "Section 1040 of the Evidence Code 
25

'represents the exclusive means by which a public entity may assert a claim of 

governmental privilege based on the necessity for secrecy.' " (Shepherd, supra, 17 Cal.3d 

at p. 123, fn. omitted.) Official information, for purposes of the privilege, means 

"information acquired in confidence by a public employee in the course of his or her duty 

and not open, or officially disclosed, to the public prior to the time the claim of privilege 

is made." (Evid. Code, § 1040, subd. (a).) A public entity has an absolute privilege to 

refuse to disclose such information if disclosure is forbidden by state or federal law. (Id., 

§ 1040, subd. (b)(1).) If disclosure is not forbidden, the public entity may still assert a 

qualified privilege. (Id., § 1040, subd. (b)(2).) The qualified privilege generally applies 

if "[d]isclosure of the information is against the public interest because there is a 

necessity for preserving the confidentiality of the information that outweighs the 

necessity for disclosure in the interest of justice[.]" (Ibid.)

This court has recognized, in the analogous context of a district attorney, that the 

official information privilege applies to information obtained in the course of a 

governmental investigation. "[B]ecause the district attorney does not have 'a "client" as 

such,' confidentiality regarding the fruits of investigations of a public prosecutor are 

governed exclusively by Evidence Code section 1040, which controls the assertion of 

claims for governmental privilege for official information." (People ex rel. Lockyer v. 

Superior Court (2000) 83 Cal.App.4th 387, 399.) Although Wood argued in the trial 

court that the official information privilege applied, she has not raised that argument in 

this court. We therefore have no occasion to consider whether and to what extent the 

official information privilege would protect the email at issue here from disclosure.
26

Wood and DFEH rely on a number of federal district court opinions, mostly 

unpublished, which have found a privilege for communications between the EEOC and 

antidiscrimination complainants—even though federal courts recognize there is no actual 

attorney-client relationship between the EEOC and individual complainants (see, e.g., 

Williams v. United States (D.Ore. 1987) 665 F.Supp. 1466, 1471). We find the opinions 

cited by Wood and DFEH unpersuasive. 

We note initially that the federal and state laws of privilege are distinct and 

somewhat divergent. Federal privileges are a matter of federal common law. (Fed. Rules 

Evid., rule 501, 28 U.S.C.) "Because the Federal Rules of Evidence provide that 

principles of common law govern rules of privilege, federal courts have the flexibility to 

develop rules of privilege on a case-by-case basis." (OXY Resources Cal. LLC v. 

Superior Court (2004) 115 Cal.App.4th 874, 888 (OXY).) "Unlike the federal courts, 

'[t]he courts of this state . . . are not free to create new privileges as a matter of judicial 

policy and must apply only those which have been created by statute. [Citations.]' 

[Citations.] Indeed, '[o]ur deference to the Legislature is particularly necessary when we 

are called upon to interpret the attorney-client privilege, because the Legislature has 

determined that evidentiary privileges shall be available only as defined by statute. 

[Citation.] Courts may not add to the statutory privileges except as required by state or 

federal constitutional law [citations], nor may courts imply unwritten exceptions to 

existing statutory privileges. [Citations.]' [Citation]. The area of privilege ' "is one of 

the few instances where the Evidence Code precludes the courts from elaborating upon 

the statutory scheme." ' " (Id. at pp. 888-889, fn. omitted; accord, Wells Fargo Bank v. 
27

Superior Court (2000) 22 Cal.4th 201, 206 ["The privileges set out in the Evidence Code 

are legislative creations; the courts of this state have no power to expand them or to 

recognize implied exceptions."]; Roberts, supra, 5 Cal.4th at p. 373.)

The federal opinions cited by Wood and DFEH reflect a flexible view of the 

attorney-client privilege that we are prohibited by statute from adopting. Many of the 

opinions that articulate their legal reasoning rely on the federal joint defense or common 

interest privilege, which applies to certain communications even in the absence of an 

actual attorney-client relationship. (See, e.g., United States v. Gumbaytay (M.D.Ala. 

2011) 276 F.R.D. 671, 675-676 ["Accordingly, this court will follow [other courts] in 

recognizing that the common interest rule protects communications between a 

governmental agency and persons on whose behalf the governmental agency brings 

suit."]; EEOC v. DiMare Ruskin, Inc. (M.D.Fla. Feb. 15, 2012, No. 2:11-CV-158) 

2012 U.S. Dist. LEXIS 24951 ["[The common interest privilege] protects 

communications between an individual, or the individual's attorney, and an attorney 

representing a person or entity that shares a common interest with the individual 

regarding a legal matter of common interest."]; EEOC v. Chemtech International Corp. 

(S.D.Tex. May 18, 1995, Civ. A. No. H-94-2848) 1995 U.S. Dist. LEXIS 21877 ["In 

addition, because the EEOC and the private citizen have many identical interests, the 

attorney-client privilege is essentially a joint prosecution privilege that extends to 

communications between a party and the attorney for a co-litigant."]; EEOC v. HBE 

Corp. (E.D.Mo. May 19, 1994, No. 4:93-CV-722) 1994 U.S. Dist. LEXIS 9326 ["A 

client may refuse to disclose confidential communications made for purpose of 
28

facilitating or rendering professional legal services to the client by his attorney or a 

lawyer representing another in a matter of common interest."].)

This federal joint defense or common interest privilege recognizes "an implied 

attorney-client relationship" between a party and the lawyer for a different party, where 

the parties share a common interest. (See, e.g., United States v. Henke (9th Cir. 2000) 

222 F.3d 633, 637.) Whatever the policy merits of this privilege, it is not available in 

California. "The 'joint defense privilege' and the 'common interest privilege' have not 

been recognized by statute in California." (OXY, supra, 115 Cal.App.4th at p. 889.) 

California has not adopted the federal view that "there is an expanded attorney-client 

relationship encompassing all parties and counsel who share a common interest." (Ibid.) 

California requires a genuine attorney-client relationship for the privilege to apply. 

(Evid. Code, § 952; Los Angeles County, supra, 2 Cal.5th at pp. 294-295; Gionis, supra, 

9 Cal.4th at p. 1210.) Federal opinions that rely on the joint defense privilege or common 

interest privilege, whether expressly or impliedly, are therefore unpersuasive.4

Other federal opinions cited by Wood and DFEH recognize that no genuine 

attorney-client relationship exists between the EEOC and individual complainants, but 

they nonetheless find a privilege based on a "de facto" attorney-client relationship. (See, 

4 California recognizes a common interest doctrine, but it is not at issue here. The 

common interest doctrine preserves the privilege "when parties with common interests 

disclose privileged communications to each other. The privilege survives disclosure to a 

party with a common interest only if it is necessary to accomplish the privilege holder's 

purpose in seeking legal advice. The doctrine extends no further than this because in 

California there is no independent statutory joint defense or common interest privilege, 

and California courts are not authorized to establish one." (Citizens for Ceres v. Superior 

Court (2013) 217 Cal.App.4th 889, 916-917.)
29

e.g., Bauman v. Jacobs Suchard, Inc. (N.D.Ill. 1990) 136 F.R.D. 460, 461 (Bauman) 

["While there does not appear to be any formal attorney-client relationship, the EEOC, 

through its attorneys, are essentially acting as de facto counsel for the employees."]; 

EEOC v. Tony's Lounge, Inc. (S.D.Ill. April 9, 2010, No. 08-CV-677) 2010 WL 1444874, 

at *2 [same]; EEOC v. Scrub, Inc. (N.D.Ill. May 25, 2010, No. 09-C-4228) 2010 WL 

2136807, at *7 [same]; see also National Labor Relations Bd. v. Jackson Hospital Corp. 

(D.D.C. 2009) 257 F.R.D. 302, 311 ["The de facto attorney-client privilege applies in 

situations where there is no actual attorney-client relationship, but one entity is acting like 

the other entity's attorney."].) The nature and extent of such a "de facto" attorney-client 

relationship is unknown. It appears to be an application of the federal joint defense or 

common interest privilege described above. In any event, California does not recognize 

such a de facto relationship that would support the attorney-client privilege, in the 

absence of an actual attorney-client relationship.

Still other federal opinions cited by Wood and DFEH assume that defendants in 

antidiscrimination cases will be represented by their own lawyers, and they focus on the 

alleged inequity between those represented defendants and unrepresented complainants. 

(See, e.g., EEOC v. International Profit Associates, Inc. (N.D.Ill. 2002) 206 F.R.D. 215, 

219 (IPA) ["This Court expressed in oral argument . . . employers in these types of cases 

have available the protection of the attorney-client privilege whereas there is no sound 

reason why employees would not."]; Bauman, supra, 136 F.R.D. at pp. 461-462 ["There 

is no sound reason why employers in such cases should have available the protection of 

the attorney-client privilege whereas employees would not."].) This view of the equities 
30

appears somewhat simplistic, given the presence of the government as a party plaintiff. 

(See Clancy, supra, 39 Cal.3d at p. 746 [observing that a prosecutor has "the vast power 

of the government available to him"].) But, in any event, even crediting the view of these 

federal district courts, we cannot use such policy considerations to extend the attorneyclient privilege beyond its statutory bounds.

Finally, some federal opinions appear to adopt the principle that the privilege 

always applies whenever a person seeks legal advice from a lawyer. (See, e.g., IPA,

supra, 206 F.R.D. at p. 218; EEOC v. Georgia-Pacific Corp. (D.Ore. Nov. 10, 1975, 

No. 69-101) 1975 U.S. Dist. LEXIS 15377.) These opinions are unpersuasive because 

this principle is contrary to California law, which requires an attorney-client relationship, 

as discussed above. (Evid. Code, § 352; Los Angeles County, supra, 2 Cal.5th at pp. 294-

295; Gionis, supra, 9 Cal.4th at p. 1210.)

In sum, Wood has not met her burden of establishing the preliminary facts 

necessary to support the privilege, i.e., "a communication made in the course of an 

attorney-client relationship." (Costco, supra, 47 Cal.4th at p. 733.) Wood had no 

attorney-client relationship with DFEH lawyers. They represented DFEH, not Wood, and 

her discussion of legal matters with them is insufficient to create an attorney-client
31

relationship under the circumstances here. Wood has not shown the trial court erred by 

ordering her to produce the email in question.5

DISPOSITION

The petition is denied. The stay ordered by the Supreme Court on October 9, 2019 

is vacated. Crunch is awarded its costs. (Cal. Rules of Court, rule 8.493(a).)

GUERRERO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

O'ROURKE, J.

5 In its return, Crunch raises its own claims for relief based on other alleged trial 

court errors in handling its motion to compel. We decline to consider them because 

Crunch did not file its own petition for writ of mandate. Crunch may not obtain review 

of the trial court's order by way of its response to Wood's writ petition. (Campbell v. 

Superior Court (2005) 132 Cal.App.4th 904, 922.)