Sigalla v. Meidhof

• Court: Colorado Court of Appeals
• Decided: February 6, 2025
• Docket: 23CA1810
• Status: Unpublished

Opinion

23CA1810 Sigalla v Meidhof 02-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1810 City and County of Denver District Court No. 22CV31883 Honorable Andrew J. Luxen, Judge

Fiona Sigalla,

Plaintiff-Appellant,

v.

Robin Z. Meidhof and Paul Kyed,

Defendants-Appellees,

and

Colorado Department of Regulatory Agencies’ Public Utilities Commission,

Intervenor-Appellee.

JUDGMENT AFFIRMED

Division VI Opinion by JUDGE KUHN Welling and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 6, 2025

Robert McGuire Law Firm, Robert A. McGuire III, Denver, Colorado, for Plaintiff-Appellant

Hall & Evans L.L.C., Andrew D. Ringel, Kendra K. Smith, Denver, Colorado, for Defendants-Appellees

Littler Mendelson, P.C., Margaret Parnell Hogan, Matthew C. Freemann, Billie Jo M. Risheim, Denver, Colorado, for Intervenor-Appellee ¶1 Plaintiff, Fiona Sigalla, appeals the trial court’s dismissal of

her claims for defamation and interference with contract or

prospective economic advantage against defendants Robin Z.

Meidhof and Paul Kyed. We affirm.

I. Background

¶2 Sigalla is a senior economist on the trial staff of the Colorado

Public Utilities Commission (PUC). The PUC conducts contested

in-house adjudicatory proceedings to address matters involving

Colorado utilities. During these proceedings, the PUC trial staff —

consisting of a variety of experts, including economists, analysts,

and engineers — are represented by attorneys with the Colorado

Department of Law, which is headed by the Colorado Attorney

General (collectively the AG’s office). Meidhof and Kyed are two

such attorneys. At the time of the critical events in this case,

Meidhof was the Deputy Attorney General over the Revenue and

Utilities Section. Kyed, in turn, was the First Assistant Attorney

General of the PUC Litigation Unit, which is one of the units within

Meidhof’s section. Meidhof was Kyed’s direct supervisor. Kyed and

the attorneys he supervises represent the trial staff during the

PUC’s adjudicatory proceedings.

1 ¶3 During the course of this representation, the PUC Litigation

Unit works closely with the PUC trial staff; however, they are two

distinct government entities. Lawyers within the AG’s office

ultimately report to the Attorney General, while the PUC is housed

within the Department of Regulatory Agencies (DORA), and its staff

ultimately report to the Governor. Unlike a traditional

attorney-client relationship, the AG’s office — barring unusual

circumstances not presented here — is statutorily required to

represent the PUC. § 24-31-101(1)(a), C.R.S. 2024.

¶4 Meidhof and Kyed received multiple complaints from attorneys

in the PUC Litigation Unit regarding Sigalla’s workplace behavior in

connection with their representation of the trial staff. One assistant

attorney general reported extensive concerns about her experiences

with Sigalla and her belief that Sigalla’s supervisors were not taking

any action to rectify the situation. Kyed described the working

environment created by Sigalla as “sometimes unprofessional,

sometimes inappropriate, sometimes abusive, slash, bullying.”

However, he noted that “there were some situations where

everything was okay working with her,” but those situations “were

far outweighed by the bad ones.” Both sides agree that tensions

2 between Sigalla and the PUC Litigation Unit had simmered for

nearly a decade before coming to a head in the events giving rise to

this case.

¶5 Meidhof and Kyed — along with their predecessors — raised

concerns about Sigalla with her supervisors multiple times. But

according to them, those reports resulted in no changes to the

situation. So after receiving the latest complaints described above,

Meidhof conducted an inquiry into Sigalla’s behavior and the

history of the conflict. She spent several months getting

information from other attorneys at the AG’s office and speaking

with her predecessor deputies of the section, Eric Meyer and Terry

Gill. Meyer provided her with two emails from 2017 and 2018

detailing his attempts to engage PUC management about the same

issues. Gill also told her about what he had done in 2020 and his

communications with the PUC regarding Sigalla. Finally, Meyer,

who was then the Chief Operating Officer, advised Meidhof to

involve human resources.

¶6 Meidhof continued to have discussions with attorneys in the

AG’s office. Ultimately, with the guidance of human resources, she

determined the best course of action was to write a letter to Sigalla’s

3 managers. Meidhof and Kyed drafted the initial letter before

sending it to multiple internal reviewers. Meidhof then sent the

final letter to the PUC.

¶7 The letter detailed the history of complaints from the AG’s

office, the office’s opinions regarding Sigalla’s unprofessional

behavior, the impact it had had on the AG’s office, and the actions

the AG’s office planned to take regarding Sigalla. These actions

included (1) PUC Litigation Unit members no longer communicating

with Sigalla; (2) unit members reporting any communication from

Sigalla to Kyed, who would determine a response; and (3) unit

members no longer attending any meetings in which Sigalla would

be present. In addition, the letter detailed a series of steps that the

AG’s office wanted the PUC to take in order to effectuate those

actions. In effect, the letter informed the PUC that the AG’s office

was cutting off contact with Sigalla.

¶8 Upon receipt of the letter, the PUC retained an outside firm to

conduct an employment investigation. The investigator, who is also

an attorney, completed seventeen interviews of various parties who

had been involved in the situation and then issued an investigative

report. Notably, Sigalla’s reputation within the PUC didn’t line up

4 with the experiences expressed in the letter. Sigalla had received

strong performance reviews from her supervisors and was seen as a

good team member and colleague at the PUC. The investigation

resulted in no discipline for Sigalla.

¶9 Sigalla then sued Meidhof and Kyed in their individual

capacities for defamation and interference with contract or

prospective economic advantage. Meidhof and Kyed moved for

dismissal under the Colorado Governmental Immunity Act (CGIA),

sections 24-10-101 to -120, C.R.S. 2024, and requested a hearing

under Trinity Broadcasting of Denver, Inc. v. City of Westminster,

848 P.2d 916 (Colo. 1993), to establish facts relevant to their

immunity defense.

¶ 10 Before the hearing commenced, the PUC filed an emergency

motion to intervene on the grounds that the parties, primarily

Sigalla, intended to introduce attorney-client privileged material.

The trial court granted the emergency motion and held a hearing on

the PUC’s claims of attorney-client privilege. The trial court then

held the Trinity hearing. At the conclusion of that hearing, it issued

an oral ruling in favor of Meidhof and Kyed and dismissed the case.

5 II. Analysis

¶ 11 Sigalla contends that the trial court erred by (1) failing to

explicitly determine whether Meidhof and Kyed were acting within

the scope of their employment, or reaching the wrong conclusion to

the extent it impliedly made the determination; (2) finding that

Meidhof and Kyed did not act willfully and wantonly; and

(3) erroneously excluding evidence and attorney-client privileged

material.

A. Standard of Review and Applicable Law

¶ 12 The trial court is the finder of fact on questions of sovereign

immunity. Gallagher v. Bd. of Trs. for Univ. of N. Colo., 54 P.3d 386,

395 (Colo. 2002), overruled on other grounds by Martinez v. Est. of

Bleck, 2016 CO 58. We review the trial court’s factual findings for

clear error. Bresciani v. Haragan, 968 P.2d 153, 159 (Colo. App.

1998). “A court’s finding of fact is clearly erroneous if there is no

support for it in the record.” Gagne v. Gagne, 2019 COA 42, ¶ 17.

However, “[o]nce the questions of fact are resolved, we review

questions of governmental immunity de novo.” City & Cnty. of

Denver v. Dennis, 2018 CO 37, ¶ 12. Likewise, “[q]uestions of law

6 concerning the application and construction of statutes are subject

to de novo review.” Danko v. Conyers, 2018 COA 14, ¶ 19.

¶ 13 “[W]e grant considerable deference to the trial court’s

determinations and review evidentiary rulings for an abuse of

discretion. A trial court abuses its discretion if its decision is

‘manifestly unreasonable, arbitrary, or unfair.’” Davis v. People,

2013 CO 57, ¶ 13 (first citing Dale v. Guar. Nat’l Ins. Co., 948 P.2d

545, 556 (Colo. 1997); then quoting Freedom Colo. Info., Inc. v. El

Paso Cnty. Sheriff’s Dep’t, 196 P.3d 892, 899 (Colo. 2008)).

However, “we review de novo [the] application of the attorney-client

privilege.” In re Estate of Rabin, 2020 CO 77, ¶ 16 (citations

omitted).

¶ 14 “The court at every stage of the proceeding must disregard all

errors and defects that do not affect any party’s substantial rights.”

Stockdale v. Ellsworth, 2017 CO 109, ¶ 32 (quoting C.R.C.P. 61).

“[A]n error affects a substantial right only if ‘it can be said with fair

assurance that the error substantially influenced the outcome of

the case or impaired the basic fairness of the trial itself.’” Laura A.

Newman, LLC v. Roberts, 2016 CO 9, ¶ 24 (emphasis omitted)

(quoting Bly v. Story, 241 P.3d 529, 535 (Colo. 2010)). The party

7 asserting error has the burden to show that any error was harmful

or prejudicial. See Poudre Valley Rural Elec. Ass’n v. City of

Loveland, 807 P.2d 547, 557 (Colo. 1991).

¶ 15 The CGIA extends sovereign immunity to public employees —

subject to certain exceptions not applicable here — for “any claim

for injury . . . , which lies in tort or could lie in tort.”

§ 24-10-118(2)(a). However, the immunity only applies when a

claim “arises out of an act or omission of such employee occurring

during the performance of [the employee’s] duties and within the

scope of [the employee’s] employment unless the act or omission

causing such injury was willful and wanton.” Id.

¶ 16 “The statute ‘requires that a plaintiff set forth in [the]

complaint specific facts which support [the] claim that public

employees acted willfully and wantonly’; conclusory allegations are

insufficient.” Wilson v. Meyer, 126 P.3d 276, 282 (Colo. App. 2005)

(quoting Robinson v. City & Cnty. of Denver, 39 F. Supp. 2d 1257,

1264 (D. Colo. 1999)). And because governmental immunity under

the CGIA derogates Colorado’s common law, we strictly construe

the statute’s immunity provisions, but we broadly construe its

8 waivers of immunity. Springer v. City & Cnty. of Denver, 13 P.3d

794, 798 (Colo. 2000).

B. Scope of Employment

¶ 17 Sigalla first contends that the trial court reversibly erred when

it did not explicitly determine whether Meidhof and Kyed acted

within the scope of their employment. Additionally, she argues that

Meidhof’s and Kyed’s actions were outside the scope of their

employment. We address each argument in turn.

1. The Trial Court Impliedly Found That Meidhof’s and Kyed’s Actions Were Within the Scope of Their Employment

¶ 18 As an initial matter, we agree with Sigalla that the trial court

did not expressly determine whether Meidhof’s and Kyed’s actions

were within the scope of their employment. We also agree that this

question must be determined to resolve a claim of sovereign

immunity. See Gallagher, 54 P.3d at 394. However, under the

specific factual circumstances of this case, we disagree that the lack

of an express finding requires reversal.

¶ 19 Citing Gallagher, Martinez, and Dennis, Sigalla argues that

“[t]he Colorado Supreme Court has consistently reversed and

remanded sovereign-immunity decisions in which trial courts have

9 failed to make the requisite factual findings needed to support a

determination as to all the elements of immunity.” But those cases

are distinguishable on the facts from the case before us, in which

the trial court made the requisite factual findings to support its

conclusion.

¶ 20 In Gallagher, the supreme court addressed a CGIA immunity

claim under a different jurisdictional framework than courts

currently employ. At the time, an assertion that a public employee

acted willfully and wantonly was a matter of qualified immunity, not

sovereign immunity.1 And “the trial court [could] not decide the

[qualified immunity] issue on a C.R.C.P. 12(b)(1) motion to dismiss

for lack of subject matter jurisdiction.” 54 P.3d at 394. The trial

court in Gallagher, however, had not held an evidentiary hearing on

1 Qualified immunity and sovereign immunity are distinct legal

doctrines that provide different forms of protection for public officials and entities. “Qualified immunity applies to a public official’s conduct when [the official] takes a discretionary action that a reasonable person would not know violates a clearly established constitutional right of the plaintiff.” Churchill v. Univ. of Colo., 2012 CO 54, ¶ 39. In contrast, sovereign immunity under the CGIA protects a public entity, and its employees, from being sued in tort without consent. It acts as a jurisdictional bar to any action that falls within its scope. See §§ 24-10-108, -118(2)(a), C.R.S. 2024; see also Martinez v. Est. of Bleck, 2016 CO 58, ¶ 15.

10 whether the defendant’s actions were within the scope of his

employment. And its order was unclear as to how it reached its

conclusion on that question of sovereign immunity. As a result, the

supreme court remanded for an evidentiary hearing and further

findings. See id. at 395.

¶ 21 Martinez abrogated Gallagher’s distinction between scope of

employment being a sovereign immunity question but willful and

wanton conduct implicating qualified immunity. The court held

that “trial courts must resolve all issues pertaining to sovereign

immunity prior to trial, including factual issues, regardless of

whether those issues pertain to jurisdiction.” Martinez, ¶ 27. The

supreme court noted that this “may require the trial court to hold

an evidentiary, or ‘Trinity,’ hearing in order to determine whether

immunity applies.” Id. Further, it noted that “Trinity and its

progeny govern claims of public employee sovereign immunity as

well.” Id. The supreme court concluded that a trial court must

resolve the question whether the defendant’s conduct was willful or

wanton as part of its sovereign immunity determination. Id. at

¶ 28. Because the district court in Martinez had only relied on the

11 allegations in the complaint, the supreme court remanded the case

to resolve the factual questions. Id.

¶ 22 In Dennis, the supreme court reinforced this point from Trinity

and Martinez. It held that “[b]ecause the CGIA protects the

government from suit, the district court must necessarily make

factual findings to ensure that the court has jurisdiction to hear the

case.” Dennis, ¶ 10 (citing Trinity, 848 P.2d at 924.)

¶ 23 Unlike these cases, however, the trial court in the case before

us did hold an evidentiary hearing, made factual findings, and

issued an ultimate determination on whether Meidhof and Kyed

were covered by sovereign immunity. These factual findings —

quite unlike the procedural posture of Gallagher or Martinez —

enable us to discern why the trial court made its ultimate

determination.

¶ 24 In its oral ruling, the trial court properly set out the

requirements of section 24-10-118. And it correctly noted that for

the CGIA to apply, “the public employee has to have been

performing his or her duties within the scope of their employment”

and if the public employee was acting within the scope of their

12 employment, that Sigalla “bears the burden of demonstrating that

the official’s conduct was willful and . . . wanton.”

¶ 25 Before the trial court reached the question of willful and

wanton conduct, it made the following factual findings:

• The letter “does not reach outside of arguably the

Attorney General’s purview and the purview of Deputy,

then a Deputy Attorney General Meidhof to indicate how

it is her subordinates and her unit would behave with

respect to Ms. Sigalla.”

• “[T]he evidence supports the inference that [Meidhof and

Kyed] sent the letter to try and mitigate tension and

difficulties in their workplace for their employees.”

• “The intent behind the letter of July 9th, 2021 was to

protect [Meidhof and Kyed’s] employees, not to harm

[Sigalla].”

¶ 26 It’s true that the trial court didn’t follow these findings up with

a final explicit finding that Meidhof and Kyed were acting within the

scope of their employment. And it undoubtedly would have been

the better practice for the court to have made the express finding.

But its oral ruling nonetheless reflects that it articulated the correct

13 question and then made a number of findings about how Meidhof

and Kyed were acting within the scope of their responsibilities with

regard to employees under their supervision. Under these

circumstances, we conclude that the trial court implicitly found

that Meidhof and Kyed were acting within the scope of their

employment.2

¶ 27 Having reached this conclusion, we turn to whether this

finding is in error.

2. Meidhof’s and Kyed’s Actions Were Within the Scope of Their Employment

¶ 28 Sigalla contends that even if the trial court found that

Meidhof’s and Kyed’s actions were within the scope of their

employment, such a determination was in error.

¶ 29 The CGIA grants immunity to public employees from injuries

“which occurred or [are] alleged in the complaint to have occurred

2 Sigalla argues that these findings were directed toward the willful

and wanton prong of the sovereign immunity question rather than the scope of employment. This doesn’t undercut our conclusion. Given the overall structure of the court’s oral ruling, we conclude that these facts also support its determination regarding the scope of employment.

14 during the performance of [their] duties and within the scope of

[their] employment.” § 24-10-118(1).

¶ 30 Sigalla invites us to use a specific test for attorneys to

determine whether their actions fall within the scope of their

employment. She argues that “for a lawyer’s conduct to fall within

the scope of his employment, that conduct must be not only

on-the-job conduct, but also conduct that is within the scope of

appropriate professional conduct for a lawyer.”3 In essence, she

asks us to engraft a professional conduct requirement onto the

statute. We decline this invitation.

¶ 31 First, the legislature has carved out specific

employment-based exceptions under the CGIA. See

§ 24-10-106(1)(i), C.R.S. 2024 (waiving CGIA protections for peace

officers who destroy lawful recordings of their activities under

section 13-21-128, C.R.S. 2024). But it did not do so for attorneys,

or, indeed, for other professions governed by ethical rules or codes

3 We note that Sigalla’s government entity employer is the

organizational client of the AG’s office, not Sigalla herself. See generally Colo. RPC 1.13; § 24-31-101(1)(a), C.R.S. 2024. This undercuts her assertion that Meidhof and Kyed owed her a duty under the Rules of Professional Conduct.

15 of conduct. “‘Where the legislature could have chosen to restrict the

application of a statute, but chose not to, we do not read additional

restrictions into the statute.’ ‘And we will not second-guess the

policy preferences of the legislature.’”4 Roane v. Archuleta, 2022

COA 143, ¶ 50 (first quoting Springer, 13 P.3d at 804; then quoting

Prairie Mountain Publ’g Co. v. Regents of Univ. of Colo., 2021 COA

26, ¶ 25), aff’d, 2024 CO 74.

¶ 32 Second, we disagree with Sigalla that an action taken in

violation of a rule of professional conduct automatically means that

the action was taken outside the scope of a person’s employment.

While an ethical breach might be a proper consideration in

evaluating that question, it is not determinative.

¶ 33 Instead, under the CGIA, “[a]n act of an employee is within the

scope of his employment if the work done is assigned to him by his

employer, is necessarily incidental to that work, or is customary in

the employer’s business.” Podboy v. Fraternal Ord. of Police, 94

4 Sigalla generally suggests that to construe the phrase “within the

scope of employment,” we should refer to the statute’s legislative history. But then she fails to point us to any. We therefore don’t consider this argument further. See Woodbridge Condo. Ass’n v. Lo Viento Blanco, LLC, 2020 COA 34, ¶ 41 n.12 (“We don’t consider undeveloped and unsupported arguments.”), aff’d, 2021 CO 56.

16 P.3d 1226, 1230 (Colo. App. 2004). The record reveals that Meidhof

and Kyed drafted the letter at their workplace with input from the

department’s chief operating officer, chief deputy, and director of

human resources. Moreover, Meidhof and Kyed were supervisors.

They drafted the letter in response to complaints made to them

from employees under their supervision. And it is clearly within a

supervisor’s employment duties to address the concerns of the

employees whom they supervise.

¶ 34 Sigalla nonetheless argues that Meidhof and Kyed overstepped

their authority and acted outside of the scope of their employment

by “impos[ing] discipline against Sigalla.” But the record refutes

this contention. In making its oral ruling, the court found that “the

letter does not call for the firing of Ms. Sigalla. It does not . . . call

for a reassignment of Ms. Sigalla by the [PUC]. It does not call for

specific discipline to be imposed on Ms. Sigalla by the [PUC].”

¶ 35 Likewise, we see no indication — in the letter or otherwise —

that Meidhof or Kyed “imposed discipline” against Sigalla. The trial

court’s findings are amply supported by the record, including

testimony from multiple witnesses and the contents of the letter

17 itself. Indeed, the court found Meidhof’s and Kyed’s testimony on

this point credible.

¶ 36 Given the record support for the court’s factual findings, we

conclude that they aren’t clearly erroneous. See Gagne, ¶ 17. And

its factual findings support its implied intermediary finding that

Meidhof and Kyed acted within the scope of their employment.

Thus, we discern no error in the trial court’s scope of employment

ruling.

C. Willful and Wanton Conduct

¶ 37 Sigalla next contends that the trial court erred in finding that

Meidhof and Kyed did not act in a willful and wanton manner. She

argues that the trial court, in conducting its willful and wanton

analysis, impermissibly (1) required that they be aware that their

letter would cause her harm and (2) concluded that evidence of

their good faith motivation was relevant in the assessment of

whether Meidhof and Kyed engaged in willful and wanton conduct.

¶ 38 Under Martinez, “willful and wanton conduct is not merely

negligent; instead, it must exhibit a conscious disregard for the

danger.” Martinez, ¶ 32. Reviewing the trial court’s application of

law de novo, see Danko, ¶ 19, we conclude that the trial court

18 considered appropriate factors when applying the “conscious

disregard” standard set forth in Martinez.

1. The Court Did Not Err by Considering Meidhof’s and Kyed’s Knowledge

¶ 39 First, Sigalla argues that there is no requirement that Meidhof

and Kyed knew how their letter would harm her before the court

could find their conduct was willful and wanton. She relies on

Duke v. Gunnison County Sheriff’s Office, 2019 COA 170, ¶ 37, in

support of this argument. She points to a statement of a division of

this court in that case noting that there is “no support for the

proposition that a public employee’s knowledge of the specific cause

of potential injury or death is required for the employee’s omissions

to constitute willful and wanton conduct. To the contrary,

knowledge and conscious disregard of a health danger to another is

sufficient.” Id. Then she highlights the trial court’s statement that

“[Sigalla] has not presented evidence showing that [Meidhof and

Kyed] were aware that their conduct would cause her harm,”

arguing that it runs afoul of the standard articulated in Duke.

¶ 40 As an initial matter, Duke dealt with physical and medical

harm, not defamation as the case before us does. Regardless, Duke

19 could not and did not change the standard articulated by the

supreme court in Martinez. To the contrary, the Duke division held

that while a party may not need to have knowledge of the specific

cause of a medical condition, the knowledge and conscious

disregard of the health danger qualified as willful and wanton

conduct. Duke, ¶ 38.

¶ 41 The trial court neither misstated nor misapplied the law.

When it said that Sigalla had not presented evidence that Meidhof

and Kyed were aware that their conduct would cause her harm,

that is but another way of saying that she did not prove that they

consciously disregarded a danger to her. This analysis complies

with the standard for determining whether their conduct was willful

and wanton as set forth in Martinez and as applied in Duke.

2. The Court Did Not Err by Considering Meidhof’s and Kyed’s Motivations

¶ 42 Second, Sigalla argues that Meidhof’s and Kyed’s intent is

irrelevant to the question of whether their conduct exhibited a

conscious disregard for danger. Thus, she argues that the trial

court’s finding that Meidhof and Kyed had good faith motivations

was erroneous. We disagree. While good intent might not

20 necessarily mean that conduct was not willful and wanton, it is one

factor that a trial court may consider. See Martinez, ¶¶ 30-31

(observing that, while no single definition applies for willful and

wanton conduct, a conscious disregard for danger may encompass

conduct “purposefully committed, which the actor must have

realized as dangerous, done heedlessly and recklessly, without

regard to the consequences, or of the rights and safety of others,

particularly the plaintiff” (emphasis omitted) (quoting Moody v.

Ungerer, 885 P.2d 200, 205 (Colo. 1994))); Wilson, 126 P.3d at 282

(“[T]o satisfy the CGIA, a plaintiff claiming defamation must show

not only wanton indifference to the falsity of a statement, but intent

or reckless disregard of the injury that the statement causes.”

(citing Zerr v. Johnson, 894 F. Supp. 372, 376 (D. Colo. 1995))).

¶ 43 Besides, an actor’s intent may indicate knowledge and

awareness, which in turn sheds light on whether that actor

exhibited a “conscious disregard.” We perceive no error in the trial

court examining Meidhof’s and Kyed’s intent while evaluating

whether their conduct was willful and wanton within the meaning

of the CGIA. And Sigalla does not challenge the trial court’s

underlying finding — that she failed to demonstrate conduct

21 showing a conscious disregard of danger — upon which that

conclusion stands.

¶ 44 Thus, we discern no error in the trial court’s finding that

Meidhof’s and Kyed’s actions were not willful and wanton.

D. Attorney-Client Privilege Rulings

¶ 45 Sigalla contends that the (1) PUC’s attorney-client privilege

was inconsistently asserted and enforced to her disadvantage,

resulting in a waiver of that privilege; and (2) the PUC also waived

that privilege by asserting a claim or defense in the matter. We

address each in turn.

1. The Trial Court Didn’t Err in its Rulings About the PUC’s Attorney-Client Privileged Materials

¶ 46 Sigalla claims the PUC only objected when she sought to elicit

privileged testimony from witnesses but didn’t make similar

objections when Meidhof or Kyed sought to do the same. She

claims that this pattern harmed her case and waived the PUC’s

privilege over the underlying communications. She also claims that

the trial court failed to uniformly apply and enforce the privilege.

¶ 47 Sigalla claims that this pattern occurred in six areas: (1) an

exhibit about audits versus discovery and an exhibit showing a

22 recorded meeting between trial staff and lawyers; (2) testimony

about Sigalla taking overly aggressive settlement positions;

(3) testimony about the recorded meeting; (4) testimony by former

PUC director Doug Dean; (5) testimony about whether a lawyer from

the AG’s office limited Sigalla’s expert testimony; and (6) the

investigative report “exonerating Sigalla,” which had been “declared

privileged” by DORA (which again houses the PUC).

¶ 48 Before turning to the merits of this issue, we must address the

PUC’s argument that Sigalla has failed to provide citations to the

record to support her argument.

a. Sigalla’s Unsupported Arguments

¶ 49 The PUC asserts that “[Sigalla] does not provide this Court any

citation to where PUC raised no objections when [Meidhof or Kyed],

instead of Sigalla, introduced testimony and evidence about these

same events, interactions, or topics.” The PUC is partially correct.

¶ 50 For the first five of the topic areas listed above, Sigalla does

not provide record support for her broad assertion of a comparative

lack of objections about the same privileged materials when raised

by Meidhof and Kyed. In its answer brief, the PUC pointed out this

lack of record citations. But in her reply brief, Sigalla did not cure

23 the problem. Instead, she pointed again to references where the

PUC objected to her counsel’s questions. She then again broadly

stated that the “PUC’s counsel did not object when Kyed and

Meidhof introduced evidence about the first five of those

parenthetical matters during their part of the Trinity hearing.”

¶ 51 Despite this assertion, Sigalla never provides record citations

to support this argument. We are thus left without direction to

what portion of the record demonstrates that the PUC didn’t object

to — and the trial court didn’t appropriately manage — Meidhof’s

and Kyed’s attempts to elicit similarly privileged material.

¶ 52 It is the appellant’s obligation to support their argument by

identifying the “parts of the record on which [they] rely.” C.A.R.

28(a)(7)(B). And “it is not the duty of the reviewing court to search

the record for evidence to support bald assertions.” Brighton Sch.

Dist. 27J v. Transamerica Premier Ins. Co., 923 P.2d 328, 335 (Colo.

App. 1996), aff’d, 940 P.2d 348 (Colo. 1997); see also Black v.

Black, 2018 COA 7, ¶ 67 (“‘[J]udges are not like pigs, hunting for

truffles buried in’ the parties’ submissions.” (quoting United States

v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991))). Thus, we decline to

review these unsupported assertions further.

24 b. The Investigative Report

¶ 53 We reach the opposite conclusion regarding Sigalla’s sixth

example. She claims that the PUC inconsistently asserted its

privilege by allowing Meidhof and Kyed to introduce witness

statements collected during the investigation that resulted in the

investigative report but then objected to her attempts to introduce

the investigative report itself. She asserts this resulted in the PUC

waiving its privilege.

¶ 54 As a general matter,

[t]he attorney-client privilege is waived if the client, the client’s lawyer, or another authorized agent of the client: . . . (3) in a proceeding before a tribunal, fails to object properly to an attempt by another person to give or exact testimony or other evidence of a privileged communication.

Restatement (Third) of the Law Governing Lawyers § 78 (Am. L. Inst.

2000). To protect attorney-client communications, “[r]easonable

efforts must be exerted to maintain the secrecy of confidential

communications, including making timely objection[s] . . . to their

25 disclosure.” Id. at cmt. e. The parties agree that the PUC is the

client and is the attorney-client privilege holder.5

¶ 55 Sigalla is correct in her broad assertion that “[w]aiver by failing

to make proper objection is an application of the general rule

requiring parties to object contemporaneously to inadmissible

evidence.” Id.; see Dep’t of Health v. Donahue, 690 P.2d 243, 247

(Colo. 1984) (“Waiver is the intentional relinquishment of a known

right or privilege.”). Waiver of the privilege “may be explicit, as

when a party orally or in writing abandons an existing right or

privilege; or it may be implied, as, for example, when a party

engages in conduct which manifests an intent to relinquish the

right or privilege, or acts inconsistently with its assertion.”

Donahue, 690 P.2d at 247.

¶ 56 Sigalla argues that this principle applies here because the PUC

“allowed Meidhof and Kyed to introduce 134 pages of witness

statements” from the investigative report. But then, Sigalla asserts,

5 “Only the client, the holder of the attorney-client privilege, may

waive it. But such a waiver may be express or implied.” People v. Cortes-Gonzalez, 2022 CO 14, ¶ 27 (citing Rademacher v. Greschler, 2020 CO 4, ¶ 23).

26 the PUC selectively enforced its privilege with regard to the

investigative report itself.6

¶ 57 As Meidhof’s and Kyed’s counsel was cross-examining Dean,

the PUC’s director at the time, she informed the trial court that the

report had been declared privileged by DORA.7 After making this

representation, Meidhof’s and Kyed’s counsel continued to question

Dean, who had not read the investigative report. No questions were

asked implicating the privileged content of the report itself.

¶ 58 We don’t see how this series of events supports the conclusion

that the PUC waived its privilege. It’s true that there were no

objections in this section of the transcript. But the questions

appear to be wholly congruent with the PUC’s protection of its

privilege. Meidhof’s and Kyed’s counsel asserted that the report

6 To the extent she challenges the trial court’s management of this

evidence, it’s notable that Sigalla stipulated to the admission of the investigative report’s witness statements. The trial court can hardly be said to have erred by admitting the evidence to which she had stipulated with no other objections.

7 Sigalla does not contest the report’s privileged status, and we note

the trial court found that it was privileged after an in-camera review.

27 had been declared privileged and then didn’t inquire about the

privileged material.

¶ 59 This example doesn’t support Sigalla’s argument that the PUC

selectively objected or that the trial court impermissibly enforced

the PUC’s privilege against her.8 We see no potential exposure of

privileged material during Dean’s examination requiring a PUC

objection for consistency. And to the contrary, later in the hearing,

when Meidhof’s and Kyed’s counsel attempted to question a witness

about the contents of the investigative report — and the statements

used in its creation — the PUC objected.

¶ 60 The PUC points us to another example of its consistent

objections involving the surreptitiously recorded meeting between

the PUC trial staff and the AG’s office. The trial court declared the

video privileged after reviewing it in camera before the Trinity

hearing. Sigalla questioned Meidhof, who had not reviewed the

video, about her testimony that “Sigalla referenced [her] competency

and called [her] an idiot in four different ways.” The PUC did not

8 We note that Sigalla does not contend that the trial court erred in

declaring the investigative report privileged material, nor does she contend that the materials declared attorney-client privileged in this case are not in fact privileged.

28 directly object to this line of questioning; however, it noted the

following:

Your Honor, . . . just for the record, Your Honor, I’m not objecting to any of the questions, but I would note to the Court [the video exhibit] is [the exhibit] that the Court yesterday excluded. So to the extent that there’s going to be . . . further representations about what occurred during that meeting I think that that is a potential issue for the Court to address.

Sigalla’s counsel responded, “Your Honor, I certainly won’t refer to

any attorney-client privileged information from that meeting. I’ll

simply refer to the things that we’ve already talked about, Ms.

Sigalla’s behavior.” The court allowed questioning to continue.

¶ 61 Then, during Kyed’s cross-examination, Sigalla’s counsel

asked the following questions:

[Sigalla]: Have you seen the video of the . . . Zoom meeting where a complaint was made that Ms. Sigalla said you were idiots or words to that effect? Did you see a video of that meeting that was produced in this case?

[Kyed]: I watched the video which has been marked for identification as [the video exhibit].

[Sigalla]: And you would agree with me that Ms. Sigalla said nothing of the kind that indicated that you were idiots or worse to that effect. Isn’t that true?

29 ¶ 62 The PUC immediately raised the following objection:

Asking questions about the specifics discussed in that meeting, I believe go into the attorney client privilege. Ms. Meidhof wasn’t able to answer questions about that video today because she hadn’t watched it. She only could comment that she was disturbed that it had been recorded without . . . her permission . . . or knowledge. I don’t see a way for there to be specific questions asked about this video without going into privilege.

¶ 63 This example does show the PUC consistently making

reasonable efforts to protect its privilege in an equal manner. See

Restatement (Third) of the Law Governing Lawyers § 78. When

Meidhof, who had not seen the privileged and barred video exhibit,

talked about her interactions with Sigalla, the PUC did not object,

instead noting that the questioning was treading close to privileged

material. But when Sigalla’s counsel later asked a direct question

about the content of a privileged meeting, the PUC objected.

¶ 64 Our review of the record shows that the examinations largely

followed this pattern. When a party approached privileged territory,

the PUC’s counsel raised a concern. But when a party attempted to

delve into the privileged material itself, the PUC objected. We see

no waiver of the attorney-client privilege by the PUC under these

30 circumstances. See Donahue, 690 P.2d at 247. And given these

facts — particularly in the absence of citation to particular rulings

— we see no unequal enforcement of that privilege by the court.

¶ 65 Thus, we do not see an abuse of discretion in the trial court’s

rulings on objections to privileged material.

2. The PUC Didn’t Waive Its Privilege by Asserting a Claim or Defense

¶ 66 Sigalla also appears to contend that the PUC impliedly waived

its privilege through intervening in the case as a party. In support,

she cites Rademacher v. Greschler, 2020 CO 4, ¶ 24, for the

proposition that “assertion of a ‘defense that depends on privileged

information’ effectuates an implied waiver of the privilege.”

¶ 67 But the record reflects that the PUC intervened in this matter

solely to enforce its privilege. It did not assert a claim or defense,

nor did it join in any other party’s claims or defenses. We thus see

no support for the premise underlying Sigalla’s argument and the

principle articulated in Rademacher. Her contention therefore fails.

E. Exclusion of Evidence

¶ 68 Sigalla also contends that the trial court (1) impermissibly

excluded some of her witnesses; (2) allowed hearsay statements

31 from two of those excluded witnesses; and (3) stopped her from

introducing a video exhibit. We address each contention in turn.

¶ 69 First, the trial court excluded three witnesses that Sigalla

intended to call: Frances Koncilja, Marianne Ramos, and Sharon

Podein — a former commissioner and a former and current PUC

employee. The trial court excluded these witnesses after Sigalla

inadvertently omitted them from her witness list.

¶ 70 “The purpose of such pre-trial disclosure of witnesses is to

enable all parties to prepare for trial.” In re Estate of Gardner, 505

P.2d 50, 52 (Colo. App. 1972). Both C.R.C.P. 16(f)(3)(VI)(A) and the

trial court’s pretrial order require the parties to list who they will

call as witnesses at trial. And “[u]nder C.R.C.P. 16 wide discretion

is vested in the trial court to determine whether a witness who has

not been listed on the pre-trial order and whose name has not been

disclosed to the opposing party may testify.” Gardner, 505 P.2d at

52. The record shows that the court ordered the parties to disclose

witnesses that would be called ten days before the Trinity hearing.

And it reiterated that point when the parties had to move the

hearing.

32 ¶ 71 Sigalla argues that the trial court was wrong to exclude

Koncilja because Sigalla could have made an offer of proof as to the

relevance of Koncilja’s testimony. She also argues that there was

no surprise regarding Koncilja’s testimony because Meidhof and

Kyed had deposed her earlier in the litigation. And she argues that

the court should have permitted Ramos and Podein to testify live

because it admitted their witness statements, as discussed below.

¶ 72 But even if all of those arguments are true, they don’t

demonstrate that the trial court’s decision to exclude Koncilja as a

witness was manifestly unreasonable, arbitrary, or unfair. See

Sovde v. Scott, 2017 COA 90, ¶ 24. The trial court has broad

discretion to manage the proceeding in front of it (and to hold

parties to its pre-hearing orders). The fact that some considerations

— such as surprise or preparation — didn’t favor exclusion don’t

automatically render the court’s decision manifestly unfair. We

discern no abuse of discretion under these circumstances.

¶ 73 Second, Sigalla argues that it was improper for the trial court

to admit the hearsay statements of her next two excluded

witnesses, Ramos and Podein, but to bar them from testifying live

because they had been omitted from the witness list. However, as

33 she admits, she stipulated that these witnesses’ hearsay statements

could be admitted into evidence. As part of that stipulation,

Meidhof and Kyed agreed to let Dean, the PUC’s director, testify

after he was also left off Sigalla’s witness list. So Sigalla attempts to

appeal the admission of hearsay evidence that she explicitly agreed

could be put before the court in exchange for other testimony she

wanted, which would have been excluded in the absence of the

parties’ stipulation. We conclude that Sigalla intentionally

relinquished her right to object to the admission of the hearsay

witness statements. See Donahue, 690 P.2d at 247. Thus, this

issue is waived, and we decline to review it further. See People v.

Geisick, 2016 COA 113, ¶ 16.

¶ 74 Third, Sigalla argues that the district court erroneously barred

her from introducing the video exhibit that she, admittedly,

surreptitiously recorded of the meeting between the PUC and the

AG’s office. She planned to introduce the video exhibit to rebut

Meidhof’s testimony that Sigalla called her “an idiot in four different

ways.”

¶ 75 As detailed above, the court had already reviewed the video

exhibit in camera and determined that it was privileged and could

34 not be introduced at the Trinity hearing. So instead of introducing

the video exhibit itself, Sigalla’s counsel asked Meidhof and Kyed

questions about the exhibit. The first part of that exchange is

detailed above in Part II.D.1.b. After Kyed acknowledged reviewing

the video exhibit, the following exchange occurred:

[Sigalla]: And you would agree with me that Ms. Sigalla said nothing of the kind that indicated that you were idiots or worse to that effect. Isn’t that true?

[PUC]: Objection. The Court has struck [the video exhibit] from this hearing.

[Sigalla]: [The video exhibit] was struck because it had attorney client privilege information in it. I’m asking a question about his memory of the video. That doesn’t involve any kind of attorney client privilege.

¶ 76 We disagree with Sigalla’s characterization of this exchange.

The trial court had previously barred the video exhibit, in its

entirety, as privileged. Despite Sigalla’s attempts to characterize

her questioning as “something that was not discussed during the

meeting,” her argument is belied by the plain language of the

questioning, which implicated the contents of the meeting. The trial

court’s exclusion of questions about material that it already ruled

was privileged does not constitute an abuse of its discretion.

35 ¶ 77 Thus, we discern no error in the trial court’s evidentiary

rulings.

III. Disposition

¶ 78 The judgment is affirmed.

JUDGE WELLING and JUDGE SCHUTZ concur.