On the eve of trial in July 2013, the consolidated actions were dismissed following a hearing on a motion for judgment on the pleadings and for presentation of a prima facie case pursuant to
In the published portion of this opinion, we conclude the trial court's order dismissing the case as to all plaintiffs based on their failure to present a prima facie case at a pretrial hearing under the authority of Cottle must be reversed because the hearing was fundamentally unfair: Plaintiffs were not provided adequate notice of the issues on which they would be asked to present their prima facie case. However, we conclude the trial court did properly award judgment on the pleadings against Cal Fire. In light of these conclusions, in the unpublished portion of this opinion, we find the trial court's award of costs to defendants as prevailing parties as to any plaintiff but Cal Fire is necessarily vacated, and because the trial court did not apportion costs, we must remand the costs award to the trial court for further proceedings to determine which costs Sierra Pacific, Beaty, and landowner defendants may recover from Cal Fire. Also in the unpublished portion of this opinion, we conclude the trial court erred in awarding attorney fees to the prevailing parties, and that the award of monetary discovery sanctions must be reversed and remanded for further proceedings. We affirm, however, the imposition of terminating sanctions against Cal Fire. Finally, we reject plaintiffs' requests that we order any remand proceedings be heard by a different judge.
FACTUAL AND PROCEDURAL BACKGROUND
Cal Fire's investigation of the Moonlight Fire determined that the fire started on property owned by landowner defendants and managed by Beaty. Sierra Pacific purchased the standing timber on the property, and contracted with Howell, a licensed timber operator, to cut the timber. On the day the Moonlight Fire began, two of Howell's employees, Bush and Crismon, were working on the property installing water bars.
On July 22, 2013, exactly one week before trial was set to commence, the trial court issued a "notice to counsel." In that notice, the trial court indicated that during the previously scheduled pretrial hearing-set for July 24, 25, and 26 (if necessary)-it would be prepared to hear any motions for judgment on the pleadings defendants intended to advance; it would share its views on the likelihood certain jury instructions would be presented; it would address whether common law claims could be asserted; it would also discuss with counsel and issue rulings regarding issues raised during the hearing including whether expert testimony would be required to present evidence of the standard of care, and, if so, the viability of claims and evidence supporting them. The court also indicated it "may, with the assistance of counsel, identify claims or issues susceptible to the conduct of a hearing authorized by Cottle [, supra ,] 3 Cal.App.4th [at page] 1381 [
At the end of this pretrial hearing, the trial court entered orders dismissing the case based on its finding that all plaintiffs failed to make a prima facie showing that they could sustain their burden of proof against any defendant, and granting an oral motion for judgment on the pleadings against Cal Fire only as to Sierra Pacific, Beaty, and landowner defendants, based on its finding that sections 13009 and 13009.1 did not provide a legal basis for relief as to those parties.
The trial court found it was appropriate to assess monetary and terminating sanctions against Cal Fire for engaging in pervasive discovery abuses. Among the enumerated exemplar abuses the trial court identified were Cal Fire's failure to produce responsive documents in violation of court orders, false deposition testimony by Cal Fire's lead investigator, falsification of interview statements incorporated into Cal Fire's discovery responses, spoliation of Cal Fire's investigator's notes, and inclusion of false reports in Cal Fire's discovery responses. The trial court also found defendants were entitled to cost-of-proof expenses for disproving Cal Fire's denial of certain requests for admission. Finally, the trial court found defendants were entitled to attorney fees as prevailing parties both on a contractual basis ( Civ. Code, § 1717 ) and because the case resulted in a public benefit ( Code Civ. Proc., § 1021.5 ).
Based both on its inherent authority and the Civil Discovery Act ( Code Civ. Proc., § 2016.010 et seq. ), the trial court imposed terminating sanctions in favor of all defendants and against Cal Fire. In addition, the trial court collectively awarded Beaty and landowner defendants attorney fees and expert witness fees of $6,146,901.41 as "a prevailing party," and made Cal Fire liable for the entirety of the award. The trial court also ordered Cal Fire
Additional factual and procedural information is provided as relevant in the ensuing discussion.
I. Challenges to Judgment of Dismissal
Plaintiffs collectively challenge the trial court's judgment of dismissal by challenging, on both procedural and substantive grounds, its order finding plaintiffs had not presented a prima facie case. Cal Fire also separately challenges the trial court's order granting judgment on the pleadings based on its conclusion sections 13009 and 13009.1 do not permit Cal Fire to state claims arising from common law negligence theories. We reverse the trial court's judgment of dismissal based on its Cottle hearing because we conclude the conduct of that hearing violated defendants' procedural due process rights.
A. Cottle Hearing
Plaintiffs challenge the trial court's dismissal of the action, raising procedural and substantive challenges to the trial court's provision of notice of a hearing based on Cottle and its finding that plaintiffs failed to present a prima facie case in support of their causes of action. Based on our conclusion that the hearing suffered prejudicial procedural errors, we need not reach the
1. Additional background.
One week before trial was to commence, the trial court issued a two-page notice to counsel, in which it decreed sua sponte that during the already scheduled pretrial hearing set to commence in two days' time, it would hear any oral motions for judgment on the pleadings any defendant wished to advance; it would share its views on the likelihood that certain jury instructions would be given and its views on some arguments advanced by the parties on whether general negligence claims could be advanced; it would hear discussion and issue rulings regarding the necessity of expert testimony, and the effect of that ruling on the viability of claims asserted; it would work with counsel to minimize evidentiary disputes and to organize exhibits and evidence; and it "may, with the assistance of counsel, identify claims or issues susceptible to the conduct of a hearing authorized by Cottle [, supra ,] 3 Cal.App.4th [at page] 1381 [
When they appeared for the pretrial hearing on July 24, 2013, the parties presented bench briefs on some of the issues identified in the trial court's notice and asserted their preparedness to discuss others. Sierra Pacific proceeded to move for judgment on the pleadings as to all of Cal Fire's claims, for failure to state a cause of action. Before presenting arguments on that motion, Sierra Pacific also stated its intention to move "under Cottle for the Court to require a prima facie showing from all plaintiffs on various issues." Argument on the motion for judgment on the
During the afternoon session, defendants identified two "insurmountable" causation issues for all plaintiffs: (1) the fire was reported within the two-hour window after cessation of yarding activity that would trigger inspection requirements under California Code of Regulations, title 14, section 938.8,
Thus, it was not until later in the afternoon session on July 24, 2013, that the issues on which plaintiffs would be called to present a prima facie case were even identified. Counsel for plaintiffs presented argument and offers of proof on the afternoon of July 24. On July 25, counsel for Cal Fire and Howell presented a substantial amount of evidence and argument regarding the causation and standard of care issues highlighted by counsel for defendants the previous day, and defendants presented counter-arguments and challenged the offers of proof of evidence presented. Toward the end of the day on July 25, the trial court directed defendants to prepare a proposed order laying out the deficiencies in plaintiffs' case to be distributed that night, with an opportunity to cure to be given the following day.
Then, on July 26, 2013, when court reconvened, the parties argued the motion for judgment on the pleadings. It was not until that motion was submitted that plaintiffs were permitted to again present their prima facie case, at which time plaintiffs objected to the Cottle procedure as applied in this case, and presented further arguments relating to the Cottle "motion." During this time period, the parties also presented briefs to the court on any number of other issues still undecided, including, for example, jury instructions, whether expert testimony was required to establish the standard of care and breach thereof, and the motion for judgment on the pleadings. Late in the afternoon on July 26, the trial court deemed the case submitted and entered an order dismissing the case based on its finding that plaintiffs failed to establish a prima facie case.
2. Legal background.
Cottle involved an action filed by approximately 175 owners and renters of residential property who sued the property developers for personal injuries, emotional distress, and property damage arising
On November 7, 1990, the trial court issued a case management order requiring that each plaintiff file and serve by February 1, 1991, a statement establishing a prima facie claim for personal injury and/or property damage, including details as to exposure, injury, and expert support with regard to any personal injury claim. ( Cottle , supra ,
The plaintiffs submitted supplemental statements on May 31, 1991, including declarations from a toxicologist and two neuropsychologists. ( Cottle , supra ,
In defending the trial court's authority to issue such an order, the Court of Appeal, Second Appellate District, Division Seven, reasoned that courts have "inherent equity, supervisory and administrative powers" derived from the Constitution, in addition to statutory authority to control the proceedings which they oversee. ( Cottle , supra ,
Thus, Cottle recognized that "courts have the power to fashion a new procedure in a complex litigation case to manage and control the case before them." (
Cottle further rejected the plaintiffs' contention that they were deprived of due process, holding, "[e]ven though the nature of the proceedings in the court changed, it was clear that what the court wanted was for petitioners [ (the plaintiffs) ] to make a prima facie showing of their physical injury claims. Accordingly, [the plaintiffs] had notice of what was actually required of them as well as extensive opportunity to present evidence and argue the issue." ( Cottle , supra ,
In the nearly three decades since Cottle was decided, two published cases have affirmed a trial court's use of Cottle -type proceedings. In Lockheed Martin Corp. v. Continental Ins. Co. (2005)
The infrequent application of Cottle is perhaps unsurprising in light of extensive scrutiny of its reasoning. In the dissent to Cottle , authored by Justice Johnson, it was highlighted that until Cottle , "resort to a trial court's inherent authority to craft new rules of civil procedure [was] only a proper exercise of inherent powers when made necessary because of the absence of any statute or rule governing the situation. Thus, the rationale for devising new rules of procedure has historically been one of
Subsequent authority too has challenged the scope of the court's inherent authority relied upon in Cottle . Rutherford v. Owens-Illinois, Inc. (1997)
So too has the use of other motions in limine to hear disguised dispositive motions been criticized. For example, a court may employ its inherent powers, including the " 'inherent power to control litigation and conserve judicial resources,' " to use a motion in limine to test whether a complaint states a cause of action. ( K.C. Multimedia, Inc. v. Bank of America Technology & Operations, Inc. (2009)
Concerns about procedural shortcuts may also implicate constitutional issues. "Both the federal and state Constitutions compel the government to afford persons due process before depriving them of any property interest. ( U.S. Const., 14th Amend. ['nor shall any state deprive any person of life, liberty, or property, without due process of law']; Cal. Const., art. I, § 7, subd. (a) ['A person may not be deprived of life, liberty, or property without due process of law ....'].)" ( Today's Fresh Start, Inc. v. Los Angeles County Office of Education (2013)
In determining whether due process was afforded here, we adopt the balancing test set forth in Mathews v. Eldridge (1976)
That there is a private interest affected here is of little doubt. "Due process requires notice before a dismissal of a case may be entered." ( Lee v. Placer Title Co. (1994)
The risk of an erroneous deprivation was high as a result of the procedures implemented in this case. Plaintiffs were not provided advance notice of the issues they would be asked to address at the hearing, which resulted in a dismissal of their entire actions. Rather, they were notified by the trial court two days before the hearing, and one week before a multi-month trial was to commence, that it "may" identify issues, with the aid of counsel, on which to conduct a Cottle hearing. However, Cottle and the cases that have implemented it provided parties weeks or
The only identifiable governmental interest impacted by the provision of additional procedural protections, i.e., advance notice of the issues to be presented and a meaningful opportunity to gather evidence to present, are the fiscal and administrative burden of conducting trial as scheduled. However, this too could have been ameliorated had the trial court identified the issues for which it required a prima facie presentation immediately following its review of the trial briefs-apparently the precipitating force behind its decision to utilize Cottle to narrow the issues of the case-two full weeks before trial was to commence. For example, the trial court could have continued trial at that point, which would have permitted the court to contact jurors and to adjust the courthouse schedule to allow time for the Cottle hearing to be noticed and heard, with an opportunity to cure any deficiencies before an order was entered. Additionally, this interest is minor in contrast to the potential for erroneous dismissal of the entire case through the procedures implemented.
Balancing these factors, on the facts before us, we conclude plaintiffs' due process rights were infringed by the manner in which the trial court noticed and conducted the Cottle hearing. Accordingly, we reverse the judgment of dismissal premised on the trial court's July 26, 2013 order finding plaintiffs failed to establish a prima facie case.
B. Judgment on the Pleadings
As noted above, during the pretrial hearing less than a week before trial was to commence, Sierra Pacific made an oral motion for judgment on the pleadings as to the claims presented by Cal Fire.
In construing sections 13009 and 13009.1, we extend no deference to the trial court's interpretation, but instead review the question of law regarding statutory construction de novo. ( John v. Superior Court (2016)
At common law, there was no recovery of government-provided fire suppression costs; that recovery is purely a creature of statute. ( City of Los Angeles v. Shpegel-Dimsey, Inc. (1988)
The statutes in question here, sections 13009 and 13009.1, provide as follows. In pertinent part, section 13009, subdivision (a) states that "[a]ny person ... who negligently, or in violation of the law, sets a fire, allows a fire to be set, or allows a fire kindled or attended by him or her to escape onto
As the language of the statute itself does not clearly delineate the impact of the inclusion of the term "negligently," we turn to legislative history for guidance. In 1931, the Legislature enacted chapter 790, which provided that an owner whose property was damaged could recover from "[a]ny person who: [¶] (1) [p ]ersonally or through another , and (2) [w]ilfully, negligently, or in violation of law, commits any of the following acts: (1) [s]ets fire to, (2) [a]llows fire to be set to, (3) [a]llows a fire kindled or attended by him to escape to the property, whether privately or public owned, of another" or "[a]ny person" who allowed a fire burning on his property to escape to another's property "without exercising due diligence to control such fire." (Stats. 1931, ch. 790, §§ 1-2, p. 1644, italics added.) Chapter 790 also permitted recovery of the expenses of fighting such fires "by the party, or by the federal, state, county, or private agency incurring such expenses." (Stats. 1931, ch. 790, § 3, p. 1644.) Prior to this enactment, there was no statute authorizing the government to recover its fire suppression or investigation costs.
In 1953, the Legislature enacted chapter 48, codifying section 13007 et seq., including, in particular, section 13009, which generally appears to replicate the language of the 1931 enactment. (Stats. 1953, ch. 48, §§ 1-3, p. 682.) As enacted, former section 13009 permitted recovery of "[t]he expenses of fighting any fires mentioned in Sections 13007 and 13008 ... against any person made liable by those sections for damages caused by such fires." (Stats. 1953, ch. 48, § 3, p. 682.) At that time, section 13007 permitted an owner whose property was damaged to recover against "[a]ny person who personally or through another wilfully, negligently, or in violation of law, sets fire to, allows fire to be set to, or allows a fire kindled or attended by him to escape to, the property of another, whether privately or publicly owned ...."
None of the subsequent amendments to section 13009 in 1982, 1987, 1992, or 1994 have re-inserted or otherwise incorporated the "personally or through another" language that would expressly provide for the application of vicarious liability concepts. (Cf. Stats. 1982, ch. 668, § 1, p. 2738; Stats. 1987, ch. 1127, § 1, p. 3846; Stats. 1992, ch. 427, § 91, pp. 1627-1628; Stats. 1994, ch. 444, § 1, pp. 2410-2411.) Neither did the Legislature include such language in section 13009.1, when it was added in 1984 or amended in 1987. ( § 13009.1, added by Stats. 1984, ch. 1445, § 1, pp. 5058-5059, as amended by Stats. 1987, ch. 1127, § 2, pp. 3846-3847.) Instead, as relevant to our inquiry, both sections 13009 and 13009.1 persist in imposing liability on
Cal Fire argues we should not construe the presence of the "personally or through another" language in section 13007 and its absence in sections 13009 and 13009.1 as indicative of any legislative intent to preclude application of vicarious liability concepts in the latter sections. We disagree. Cal Fire's claim that the language is surplusage in section 13007 is unavailing. For, "[i]t is a maxim of statutory interpretation that courts should give meaning to every word of a statute and should avoid constructions that would render any word or provision surplusage." ( Tuolumne Jobs & Small Business Alliance v. Superior Court (2014)
We also reject Cal Fire's contention that other common law theories of direct liability including negligent supervision, negligent hiring, negligent inspection, negligent management and use of property, and peculiar risk have been grafted into sections 13009 and 13009.1 through inclusion of the term "negligently." The adverb "negligently" carries the connotation that the tortious actor " 'failed to comply with a standard of conduct with which any ordinary reasonable man could and would have complied: a standard requiring him to take precautions against harm.' " (Black's Law Dict. (10th ed. 2009) p. 1198, col. 2.) Here, "negligently" is an adverb modifying three potential verb phrases: (1) sets a fire, (2) allows a fire to be set, or (3) allows a fire kindled or attended by him or her to escape. ( §§ 13009, subd. (a), 13009.1, subd. (a).) To read the statute as permitting liability where a "person" negligently supervised, managed, hired, or inspected another who set or allowed to be set a fire, is simply too attenuated a construction to be
The most apropos potential case we encountered was County of Ventura v. Southern California Edison Co. (1948)
We are not persuaded otherwise by the cases cited by our esteemed colleague in his dissent or by the cases proffered by Cal Fire. For instance, as the dissent acknowledges, Haverstick v. Southern Pacific Co. (1934)
Moreover, subdivisions (a)(2) and (3), added to sections 13009 and 13009.1 in 1987, extended liability for cost recovery to "[a]ny person ... (2) other than a mortgagee, who, being in actual possession of a structure, fails or refuses to correct, within the time allotted for correction, despite having the right to do so, a fire hazard prohibited by law, for which a public agency properly has issued a notice of violation respecting the hazard, or (3) including a mortgagee, who, having an obligation under other provisions of law to correct a fire hazard prohibited by law, for which a public agency has properly issued a notice of violation respecting the hazard, fails or refuses to correct the hazard within the time allotted for correction, despite having the right to do so ...." (Stats. 1987, ch. 1127, §§ 1-2, pp. 3846-3847.) Were it possible for section 13009 or 13009.1 to be applied to one who did not through his direct action proximately cause the fire, i.e., to set a fire or allow it to be set, there would have been no cause to amend the statute to extend liability to one who has the right and responsibility to cure a noticed
Therefore, we conclude neither that inclusion of the term "negligently" in sections 13009 and 13009.1 nor that the statutory definition of "person" to include a corporation, incorporates common law theories of negligence into the statutes. And further that sections 13009 or 13009.1 do not provide for vicarious liability. Accordingly, the trial court did not err in awarding judgment on the pleadings to Sierra Pacific, Beaty, and landowner defendants with regard to Cal Fire's claims. On remand following our reversal of the judgment of dismissal premised on the trial court's July 26, 2013 order finding plaintiffs failed to establish a prima facie case (see pt. I.A.3., ante , at pp. 744-45), Cal Fire is barred from pursuing claims against any defendant based on common law theories of negligence that have not been expressly included in sections 13009 or 13009.1. In reality, for reasons discussed in unpublished part II.B.4. of this opinion, post , we suspect it is unlikely there will be any opportunity on remand for Cal Fire to pursue claims against any defendant.
II. Challenges to Postjudgment Awards
Plaintiffs also challenge the trial court's postjudgment awards, specifically the orders awarding costs to defendants as prevailing parties and the orders mandating Cal Fire to pay attorney fees and expert fees and expenses to defendants either as prevailing party awards or as discovery sanctions. Cal Fire also challenges any order awarding costs of proof based on disproving denials to requests for admission. We conclude any order for costs as prevailing parties premised on the Cottle proceeding are necessarily vacated, and because the trial court did not apportion costs, the order awarding costs based on the judgment on the pleadings is remanded for further proceedings. As to discovery sanctions, we conclude it was not error for the trial court to impose monetary and terminating sanctions, but the manner in which it imposed monetary sanctions was an abuse of discretion. Therefore, we remand for further proceedings to determine an appropriate sanction award. However, we conclude it was error for the trial court to award attorney fees to defendants as prevailing parties against Cal Fire. Finally, there is no order awarding costs of proof for us to review on appeal.
The trial court entered three separate orders awarding costs. To Beaty and landowner defendants, the trial court awarded costs in the sum of $583,173.15. To Sierra Pacific, it entered an award of costs in the sum of $2,852,209.34. And, to defendants Howell, Bush, and Crismon, the trial court awarded costs in the sum of $417,604.06. The trial court did not apportion the costs awards among the multiple plaintiffs but instead made each plaintiff jointly and severally liable for the entire amount of each costs award.
In light of our reversal of the trial court's judgment of dismissal premised on its finding that plaintiffs had failed
B. Discovery Sanctions
The trial court entered postjudgment discovery sanctions against Cal Fire including both monetary sanctions totaling $28,765,365.89 and terminating sanctions based on its finding that Cal Fire had engaged in pervasive and gross discovery abuses. The trial court awarded to Beaty and landowner defendants the sum of $6,146,901.41 (comprised of attorney fees and expert witness fees), as an alternative to an award of attorney fees, as a prevailing party. The trial court awarded cumulatively to Howell, Bush, and Crismon, as an alternative to a prevailing party attorney fee award, the sum of $1,571,741.28 (comprised of attorney fees and expert witness fees adjusted by a lodestar factor of 1.2). Finally, it awarded to Sierra Pacific sanctions of
On appeal, Cal Fire argues the trial court did not have jurisdiction to impose terminating sanctions, that the terminating sanctions imposed were improperly punitive and not factually supported, and that monetary sanctions were improper because the trial court did not make the requisite findings required by Code of Civil Procedure section 2023.030. We conclude the trial court had jurisdiction to enter terminating and monetary sanctions and it did not err in imposing terminating sanctions. However, the manner in which it imposed monetary sanctions was an abuse of discretion.
1. Additional background.
In awarding discovery sanctions, the trial court found that beginning in July 2010 and continuing through 2013, Cal Fire committed multiple acts that amounted to a "gross abuse" of the Civil Discovery Act. Specifically, the trial court found that Cal
In addition to monetary sanctions, the trial court found terminating sanctions were appropriate because "Cal Fire and its counsel engaged in a stratagem of obfuscation that infected virtually every aspect of discovery in this case." The trial court noted that the pattern and practice of obfuscation began during discovery and continued even after the trial court had entered judgment and found Cal Fire's " 'willful,' " "repeated and egregious" discovery abuses impaired defendants' rights and " 'threatened the integrity of the
The trial court found that "Cal Fire's actions initiating, maintaining, and prosecuting this action, to the present time [ (postjudgment) ], [are] corrupt and tainted. Cal Fire failed to comply with discovery obligations, and its repeated failure was willful." In concluding discovery sanctions were appropriate, the trial court stated, "In the end, Cal Fire and its counsels' vast array of discovery abuses suggests that they perceive themselves as above the rule of law. With their abuses infecting virtually every aspect of the discovery process, from false testimony, to pervasive false interrogatory responses, to spoliation of critical evidence, to willful violations of the Court's Orders requiring production of WiFITER [ (Wildland Fire Investigation Training and Equipment Fund) ] documents, Defendants and the Court simply have no reason to believe that these Defendants can receive, or could ever have received, a fair trial under these circumstances." In ordering terminating sanctions, the trial court relied on authority provided by Code of Civil Procedure section 2023.030 in addition to a separate line of case law, "as augmented by the inherent powers of the Court," to issue the "most severe sanction" to dismiss the case with prejudice because it found Cal Fire "engaged in misconduct ... that is deliberate, that is egregious, and that renders any remedy short of dismissal inadequate to preserve the fairness of the trial."
In reaching these conclusions, the trial court highlighted multiple exemplar discovery
a. WiFITER fund documents
Cal Fire was ordered by the trial court to produce all responsive documents relating to the "Wildland Fire Investigation Training and Equipment Fund" (the WiFITER fund) by April 30, 2013.
Then, on October 21, 2013, counsel for Sierra Pacific informed counsel for Cal Fire that it had learned from an independent source (a State Auditor's report issued Oct. 15, 2013) of a responsive document that had not been produced by Cal Fire. As subsequently ordered by the trial court, on October 31, 2013, Cal Fire produced "a jumbled mix of documents"-more than 5,000 pages-that ought to have been produced by the April 30, 2013 deadline. Thereafter, on November 22, 2013, after Cal Fire had represented to the trial court that it had produced "everything," Cal Fire produced an additional 2,000 pages of documentation, in violation of the trial court's first and second orders to produce responsive documents.
The Attorney General presented various theories why the documents were not timely produced, notably, error by Attorney General staff in inadvertently failing to mark pages for production or in inadvertently skipping clumps of pages in their review or software errors in marking pages for production during Attorney General staff review. Nonetheless, the trial court found that Cal Fire's belated production had violated discovery rules and had prejudiced defendants in their ability to adequately conduct depositions, argue, and support or oppose motions, strategize their case, and engage in settlement negotiations because they were lacking relevant information. The trial court also found it would have ruled differently on the aforementioned motion in limine if the information had been disclosed timely and that "some of these [belatedly produced] documents belie Cal Fire's own representations to this Court that there was no evidence whatsoever that the WiFITER fund was improper." The trial court concluded Cal Fire's failure to produce a large volume of relevant documents in violation of the trial court's repeated orders to do so, even if inadvertent, demonstrated a lack of seriousness on behalf of Cal Fire in fulfilling its obligation to comply with the discovery rules that amounted to a gross violation of the rules and an affront to the trial court.
b. Lead investigator's deposition testimony
The trial court noted there was a "significant dispute between the parties as to
White was able to explain the purpose of the blue, red, and yellow indicator flags seen in the photographs, but denied even seeing the white flag, which the trial court acknowledged was more readily seen when viewed enlarged on a computer screen. After being shown the image in that manner, White retracted his assertion that there was no white flag but continued to profess ignorance of how the flag came to be there. He persisted in denying that he placed the flag, could not explain why it was there, and also maintained he was unaware that Reynolds had placed any white flag for any reason. Neither White nor Reynolds recalled placing any white flags to mark evidence or points of origin, though Reynolds posited the white flag was "very likely ... a flag [he] put down but ... discounted ... later." Additionally, the trial court found that none of the photographs omitted from the Moonlight report demonstrates any interest in points E-2 and E-3, which White identified in the report as the points of origin.
White also disavowed knowledge of a "Fire Origin" sketch-prepared by Reynolds-which depicts the two reference points that coincide with the reference points of the omitted photographs, and distance and bearing measurements from those reference points that intersect at a labeled point of origin marked with an "x" in the same location as the white flag depicted in the omitted photographs, even though photos indicate White would have at least seen the sketch when he took photographs of metal fragments. In another matter, White had testified that to locate a point of origin, one would establish two reference points and take measurements, and that this would be
The trial court explained that White's testimony on the "most central issues" in the case was not credible, demonstrated Cal Fire's pattern of obfuscation and bad
c. Falsification of interview statements
(i) J.W. Bush interview
White and Reynolds interviewed Bush, a Howell employee working on the day the Moonlight Fire began, on two occasions. The first interview, conducted September 3, 2007, was summarized but was not recorded. The second interview, on September 10, 2007, was both recorded and summarized. The summaries were incorporated into the Moonlight report, which was provided in lieu of a narrative in discovery responses, and the tape-recording of the second interview was provided in discovery.
In his summary of the September 3, 2007 Bush interview, Reynolds claims Bush attributed the cause of the fire to a Caterpillar bulldozer's tracks scraping rock. However, in the September 10, 2007 interview, as revealed by a transcript of the interview recording produced in discovery, when asked whether he ever believed that to be the cause of the fire, Bush flatly denied having that belief and denied having told anyone that a rock strike started the fire. Nonetheless, in White's summary of the September 10, 2007 Bush interview, which was incorporated into the Moonlight report provided as a discovery response to interrogatories, White indicated " 'Bush reiterated the same information he had provided to ... Reynolds,' " i.e., that the fire was caused by a bulldozer striking a rock. When White was asked during his
(ii) Ryan Bauer interview
The summary of the interview with Ryan Bauer, who was cutting firewood with an altered chainsaw in the area near where the Moonlight Fire began, included by White in the Moonlight report, omits Bauer's unsolicited, demonstrably false alibi in which he volunteered, " 'I was with my girlfriend all day. She can verify that if I'm being blamed for the fire.' " Rather, the Moonlight report indicates Bauer noticed the fire from his girlfriend's house and had gone toward the fire to see if he could assist in removing equipment. The omission of Bauer's voluntary statement renders the Moonlight report misleading with respect to his potential involvement. The Moonlight report was provided as an interrogatory response in lieu of a particularized response, though the recording of the interview was produced in discovery. Therefore, the trial court found, "[h]ad Defendants relied on Cal Fire's verified interrogator [y] [responses], this information would never have been discovered."
(iii) Red Rock lookout interviews
On the day the fire started, Caleb Lief was manning the nearest federal lookout tower, known as Red Rock. The Moonlight
None of this information, which the trial court deemed relevant to the inquiry whether Lief was properly performing his function, was contained or referenced in the written summaries of the interviews of Lief and Juska conducted and prepared by Reynolds's replacement, United States Forest Service special agent Diane Welton. The summaries are incorporated in Cal Fire's verified interrogatory responses in lieu of factual statements. The record indicates White learned of Lief's conduct sometime in 2008, but did not feel he had sufficient information to include it in the Moonlight report. Additionally, Juska testified Welton instructed her not to speak of these issues prior to her interview, and her draft report indicated she was asked to omit information because Lief's conduct was not being investigated.
White destroyed his field notes prepared during his investigation, a fact which he attempted to justify because his " 'field notes were destroyed only after the information in them was transferred to his Report [ (the Moonlight report) ], which was and is the common practice' " and that he " 'transferred all of the case file information to his laptop computer, so all this electronic information [is] in fact preserved.' " The trial court expressly found White not to be a credible witness in this regard. As proof supporting this finding, the trial court cited White's failure to record any information in the Moonlight report regarding placement of the white flag, photographs taken of the white flag, measurements and a GPS reading of the location of the rock where the white flag was placed, or the sketch in which the flag location was marked as the point of origin. Defendants discovered this all happened prior to the release of the scene only through discovery of Reynolds's notes from the United States Forest Service.
Additionally, because White had destroyed his copious field notes, the trial court found he was able to effectively and conveniently escape meaningful cross-examination because he could claim a lapse of memory when confronted with inconsistencies. White claimed not to remember the white flag, not to remember learning of the marijuana paraphernalia and odor at the Red Rock lookout, and not to remember why his report of the September 10 interview with Bush is directly opposite of the transcript of that interview. The trial court deduced that had the notes not been destroyed, White's intent may have been revealed. That Cal Fire has since made it an official practice to destroy field notes is not helpful to Cal Fire's position in defending White's voluntary spoliation of evidence in the present case.
e. Inclusion of other false origin and cause reports
Incorporated in the Moonlight report was a report about another fire-the Lyman Fire. The Moonlight report indicated that the investigation of the Lyman Fire revealed that it too was ignited when a bulldozer operated by a Howell employee struck a rock. However, the lead investigator
2. Legal Principles.
As noted above, the trial court relied on two separate sources of authority to impose discovery sanctions on Cal Fire: statutory authority provided by the
Code of Civil Procedure section 2023.030 permits the trial court to impose as sanctions against anyone who has engaged in a misuse of the discovery process monetary sanctions, issue sanctions, evidence sanctions, terminating sanctions, or contempt sanctions. Code of Civil Procedure section 2023.010 provides that the following, among others, are misuses of the discovery process: failing to respond or to submit to an authorized method of discovery; making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; and disobeying a court order to provide discovery. Other sanctionable discovery abuses include providing false discovery responses and spoliation of evidence. ( Williams v. Russ (2008)
Under this statutory scheme, the trial court has broad discretion in selecting the appropriate sanction, and we must uphold the trial court's determination absent an abuse of discretion. ( Los Defensores, Inc. v. Gomez (2014)
Under either schema, in reviewing the trial court's determination, "[w]e defer to the court's credibility decisions and draw all reasonable inferences in support of the court's ruling." ( Lopez , supra ,
3. Monetary sanctions.
We are not persuaded there is substantial evidence to support a finding that Cal Fire engaged in a misuse of the discovery process by providing an origin and cause report that did not include information regarding what happened at the Red Rock lookout tower given the evidence relating to the timing and
For example, by repeatedly presenting without limitation the Moonlight report that contained the false statement by Bush and the false Lyman Fire report as a discovery response (other than to interrogatories seeking identification of documents relating to contentions), Cal Fire engaged in sanctionable conduct by providing false discovery responses, even if it also provided responsive documents that permitted defendants to uncover the falsehoods and errors in the investigation report. And by White's providing untruthful or evasive deposition
That said, we must also consider Cal Fire's contention that the amount of the monetary sanction is unreasonable. Monetary sanctions may include "the reasonable expenses, including attorney's fees, incurred by anyone as a result of [the] conduct" that comprises the misuse of the discovery process. ( Code Civ. Proc., § 2023.030, subd. (a).) Here, Cal Fire claims the trial court failed to make the requisite finding that the attorney fees and expert fees and expenses it awarded were incurred as a result of the discovery abuses, rendering its award of those fees and expenses an abuse of discretion. We agree the trial court abused its discretion in awarding certain attorney fees and expert fees and expenses as discovery sanctions. Therefore, we reverse the award of monetary sanctions and remand the matter for a further hearing.
The trial court entered three orders awarding discovery sanctions to be paid by Cal Fire. To Sierra Pacific, the trial court awarded $21,881,484, which comprised all of the attorney fees, expert fees, and other expert expenses it incurred in defending both the state action and the concurrent federal action
The trial court reasoned that Cal Fire's discovery abuses "were the cause of all defense expenses incurred" after July 3, 2010, and that "[a]ll ... defense expenses are, in one way or another, inextricably intertwined with the falsehoods and omissions" in the Moonlight report. Thus, it did not limit the sanctions to attorney fees or expert fees incurred after the discovery misuses it found occurred, but awarded attorney fees and expert fees beginning at the inception of litigation. Defendants offer two authorities for the proposition that all expenses incurred in litigation may be imposed as sanctions. Both are inapposite.
In Qualcomm Inc. v. Broadcom Corp. (S.D.Cal., Jan. 7, 2008, No. 05cv1958-B (BLM)) 2008 U.S.Dist. Lexis 911,
Sherman v. Kinetic Concepts, Inc. (1998)
In general, the motions seeking fees as discovery sanctions and accompanying declarations provide ample evidence of when fees were incurred by defendants but do little to explain how those fees were incurred as a result of Cal Fire's discovery abuses. Therefore, we are unable to ascertain from the record which attorney fees and expert fees and expenses were incurred as a result of the discovery misuses for which we have concluded there is substantial evidence in the record to support imposition. However, we do note, for example, that in their motion for sanctions, Howell, Bush, and Crismon asserted they incurred $405,586.08 in expert fees to test Cal Fire's theory that the fire was caused by a hot metal particle being splintered from a bulldozer track upon a rock strike, including $223,404.26 in expert fees they claim were incurred as a direct result of Cal Fire's failure to test its ignition theory prior to issuing the Moonlight report. While the information obtained as a result of this expert analysis may have been used in the course of depositions and in reviewing discovery to reveal that the Moonlight report was deficient or even false, they have not shown that the fees were incurred as a result of discovery violations engaged in by Cal Fire. Accordingly, we reverse the trial court's award of monetary discovery sanctions and remand this matter to the trial court to conduct a hearing to determine the "reasonable expenses, including attorney's fees, incurred by [defendants] as a result of" Cal Fire's misuses of the discovery process. ( Code Civ. Proc., § 128.5, subd. (a).)
4. Terminating sanctions.
a. Jurisdiction to impose postjudgment
As noted above, after judgment was entered, the trial court considered defendants'
Generally speaking, " 'there can be only one final judgment in a single action.' " ( Cuevas v. Truline Corp. (2004)
Here, postjudgment and after an appeal of the judgment was perfected (case No. C074879), the trial court elected to "impose[ ] terminating sanctions" on Cal Fire and ordered that "[t]erminating sanctions shall issue against Cal Fire." Contrary to Cal Fire's assertion, this order is not a judgment. The order does not purport to dismiss the action nor otherwise equate with rendition of judgment. (See Good v. Miller (2013)
b. Propriety of order imposing terminating sanctions
As discussed in part II.B.2., ante , terminating sanctions are authorized both by the Civil Discovery Act and by common law. Here, the trial court relied on both Code of Civil Procedure section 2023.030 and its inherent authority when it imposed terminating sanctions against Cal Fire. The trial court found that Cal Fire's " 'willful,' " "repeated and egregious" misuses of the discovery process "permeated nearly every single significant issue in this case" to an extent that " 'threatened the integrity of the judicial process' " and made it implausible that defendants could ever receive a fair trial. The trial court further stated that "Cal Fire's actions in initiating, maintaining, and prosecuting this action, to the present time [ (postjudgment) ] [are] corrupt and tainted. Cal Fire failed to comply with discovery obligations, and its repeated failure was willful. ... Cal Fire's conduct reeked of bad faith. ... [C]al Fire failed to comply with discovery orders and directives, destroyed critical evidence, failed to produce documents it should have produced months earlier, and engaged in a systematic campaign of misdirection with the purpose of recovering money from Defendants." It also found that less severe sanctions
As discussed above, there is substantial evidence to support the trial court's finding that Cal Fire: (1) failed to comply with discovery orders to produce several thousand pages of the WiFITER fund documents on two separate occasions, and that the failure to comply, even if not deliberate, evinced a disregard for the discovery process; (2) repeatedly presented false, misleading, or evasive discovery responses by presenting-without limiting comment-the Moonlight report as a responsive document even though it contained a statement of causation falsely attributed to Bush and a Lyman Fire report falsely attributing fault to Howell; (3) presented false or evasive deposition testimony by White; and (4) engaged in spoliation when White improperly destroyed his field notes despite probable civil litigation. There is also certainly evidence in the record to suggest that the existence of the WiFITER fund caused investigators to have a motive for bias in their investigation of wildfires that may result in a civil cost
C. Attorney Fees
Defendants moved for attorney fees as prevailing parties (1) on a contractual basis, pursuant to Health and Safety Code sections 13009 and 13009.1, Civil Code section 1717, and Code of Civil Procedure section 1021.8, and (2) because the action resulted in the enforcement of important rights affecting the public interest, pursuant to Code of Civil Procedure section 1021.5 and Serrano v. Priest (1977)
1. No contractual basis.
One of the bases on which the trial court purportedly relied in awarding attorney fees to the prevailing defendants was Civil Code section 1717, which provides that where a contract "specifically provides" for recovery of attorney fees and costs following an action to enforce a contract, the trial court may award reasonable attorney fees to the prevailing party. Here, however, there is no contract "specifically
Contrary to the necessarily implied assertion of defendants that sections 13009 and 13009.1 create a contract between the parties, "the instant statutes only specify that the listed costs [recoverable under the statutes] are debts deemed collectible by the state 'in the same manner' as contract obligations. Such language does not transform the liability into a contract ...." ( Department of Forestry & Fire Protection v. LeBrock (2002)
Accordingly, we conclude the trial court erred in awarding attorney fees to defendants as prevailing parties on a contractual basis pursuant to Health and Safety Code sections 13009 and 13009.1, Civil Code section 1717, and Code of Civil Procedure section 1021.8.
2. Public benefit.
The other statutory basis on which the trial court purportedly awarded attorney fees was that codified in Code of Civil Procedure section 1021.5, which states in part that "[u]pon motion, a court may award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement ... are such as to make the
"[T]he necessity and financial burden requirement [of Code of Civil Procedure section 1021.5 ] ' "really examines two issues: whether private enforcement was necessary and whether the financial burden of private enforcement warrants subsidizing the successful party's attorneys." ' [Citations.] The 'necessity' of private enforcement ' " ' "looks to the adequacy of public enforcement and seeks economic equalization of representation in cases where private enforcement is necessary." ' " ' " ( Conservatorship of Whitley (2010)
Here, there is no indication the trial court considered defendants' litigation costs or potential financial benefits or burdens defendants would realize through litigation. Rather, the trial court went on at length to justify its finding that defendants conferred a significant public benefit in the course of their defense of the action by exposing and leading to the closure of the WiFITER fund, by prevailing on a summary adjudication in which the trial court interpreted a regulation ( Cal. Code Regs., tit. 14, § 938.8 ) as not creating a legal duty on landowners for fires caused by third parties, and by exposing dishonesty, investigative corruption, and a pervasive violation of discovery rules by a public entity. The trial court found that "motivation due to some personal interest, which all defendants must undeniably have, is not fatal to an award of fees under [Code of Civil Procedure] section 1021.5."
The trial court did not in any way discuss or appear to weigh the financial burden defendants incurred in pursuing their defense of the litigation or any potential
D. Costs of Proof Award
Defendants moved for attorney fees pursuant to Code of Civil Procedure section 2033.420, subdivision (a) because Cal Fire failed to admit the truth of certain matters in response to propounded requests for admission. On appeal, Cal Fire contends the trial court erred in awarding attorney fees for defendants because "defendants did not, and could not, disprove the truthfulness of Cal Fire's responses to the requests for admission at issue." We do not reach the merits of this contention because, despite the trial court's apparent finding that defendants were entitled to these costs of proof, it did not actually make any separate award of costs of proof pursuant to
III. Challenges to Judge
Finally, plaintiffs request that we require any remand proceedings be conducted by a different trial judge. We are obligated to consider this request by Code of Civil Procedure section 170.1, subdivision (c), which states: "At the request of a party ... an appellate court shall consider whether in the interests of justice it should direct that further proceedings be heard before a trial judge other than the judge whose judgment or order was reviewed by the appellate court."
Here, plaintiffs claim the request should be granted because "[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial." ( Code Civ. Proc., § 170.1, subd. (a)(6)(A)(iii).) The facts, as plaintiffs see them, are that Judge Nichols deprived them, without a legitimate reason, of a trial on the same law and evidence that a judge who had previously heard law and motion proceedings and another court in a separate but related federal case had
Our review of the record does not reveal any evidence of prejudice or bias on the part of Judge Nichols that would warrant his disqualification on remand. And erroneous rulings are not themselves sufficient evidence of bias to warrant removal. ( Blakemore v. Superior Court (2005)
DISPOSITION
In case No. C074879, the judgment of dismissal as to Cal Fire's claims against Beaty, Sierra Pacific, and landowner defendants is affirmed. The judgment of dismissal as to all other claims is reversed, and the matter is remanded to the trial court for further proceedings.
In case No. C076008, the postjudgment award of costs to defendants Sierra Pacific, Beaty, and landowner defendants as prevailing parties against Cal
Plaintiffs and appellants, other than Cal Fire, are entitled to their costs on appeal in case No. C074879. ( Cal. Rules of Court, rule 8.278(a)(1), (2).) All parties are responsible for their own costs in case No. C076008. ( Id ., rule 8.278(a)(5).)
I concur:
NICHOLSON, Acting P. J.
ROBIE, J.
I respectfully dissent.
First, the majority finds that the trial court's decision to grant judgment on the pleadings to Sierra Pacific, Beaty, and landowner defendants was proper because Health and Safety Code sections 13009 and 13009.1
As the majority notes, section 13009 states in relevant part, "[a]ny person (1) who negligently, or in violation of the law, sets a fire, allows a fire to be set, or allows a fire kindled or attended by him or her to escape onto any public or private property ... is liable for the fire suppression costs incurred in fighting the fire and for the
I believe the statutory history supports this interpretation. As my colleagues note, chapter 790, enacted in 1931, imposed liability for the cost of property damage to "Any person who: [¶] (1) Personally or through another , and [¶] (2) Wilfully, negligently, or in violation of law, commits any of the following acts: [¶] (1) Sets fire to, [¶] (2) Allows fire to be set to, [¶] (3) Allows a fire kindled or attended by him to escape to the property, whether privately or public owned, of another." (Stats. 1931, ch. 790, § 1, p. 1644, italics added.) This language appears to mirror modern day section 13007. Chapter 790, section 2, imposes liability for cost of property damage to "Any person who allows any fire burning upon his property to escape to the property, whether privately or publicly owned, of another, without exercising due diligence to control such fire." (Stats. 1931, ch. 790, § 2, p. 1644, italics added.) This language appears to mirror modern day section 13008. Importantly, section 2 omits the language "[p]ersonally or through another" that is found in the first section of chapter 790.
Three years after the enactment of chapter 790, this court in Haverstick v. Southern Pac. Co. (1934)
In 1939, the Health and Safety Code was enacted and included section 19, which defined
The majority concludes that such an interpretation would render the language "who personally or through another" in section 13007 meaningless. However, the interpretation the majority gives to section 13009, renders the definition of "person" meaningless and would result in corporations or companies never being held liable for fire suppression costs. This is highlighted by the example given in the majority opinion. The opinion distinguishes County of Ventura v. So. Cal. Edison Co. (1948)
Cases brought under section 13009 involving companies or organizations further highlight this point. In People ex rel. Grijalva v. Superior Court (2008)
Also in People v. Southern Pacific Co. , supra , 139 Cal.App.3d at pages 632, 636 through 640,
Finally, I do not believe a reading of section 13009 that includes vicarious liability renders subdivision (a)(2) and (a)(3) of that section meaningless. The majority states that "[w]ere it possible for section 13009 and 13009.1 to be applied to one who did not through his direct action proximately cause the fire ... there would have been no cause to amend the statute to extend liability to one who has the right and responsibility to cure a noticed fire hazard but fails to do so." Not so. Four years before the amendment of section 13009 in 1987, People v. Southern Pacific Co. , supra , 139 Cal.App.3d at pages 636 through 637,
This interpretation is supported by City of Los Angeles v. Shpegel-Dimsey, Inc. (1988)
For these reasons, I believe sections 13009 and 13009.1 can be read to hold companies vicariously liable for the acts of their employees. I cannot agree with my colleagues' conclusion to the contrary.
With this interpretation of the statute and the resulting denial of the motion for judgment on the pleadings, I too would reverse the award of costs to defendants, but in its entirety, not just for the reasons the majority finds the court's ruling infirm.
Further, I believe, the trial judge was not fair and impartial in much of the proceedings, and it is clear to me that he became embroiled and acted impulsively and thus erred in many other ways. For example, I agree with the majority's conclusion to reverse for fundamental due process reasons the Cottle
Not only did the trial court fail to consider incremental sanctions, the court also failed to justify why those incremental sanctions would not have been effective. My colleagues also fail to justify why incremental sanctions for the discovery violations would not have been effective. Indeed, judgment on the pleadings and dismissal had already been entered in favor of a majority of defendants, thus making terminating sanctions at this stage of the proceedings overkill and not "required to protect the interests of the party entitled to but denied discovery." ( Lopez v. Watchtower Bible & Tract Society of New York, Inc. , supra ,
Further, I do not believe that terminating sanctions were justified by CalFire's conduct. The majority finds, and I agree,
Finally, I also cannot agree that any remand be before the same trial judge, who I believe was manifestly biased and did not provide a fair and impartial forum for litigation of an enormously important case with vast ramifications beyond the facts of this proceeding. The conduct of the trial court in making the Cottle ruling, granting judgment on the pleadings and then issuing postjudgment terminating sanctions were not the actions of a fair and impartial judge.
Notes
Cal Fire's action was deemed the lead case in this complex civil litigation (Plumas Super. Ct. No. CV09-00205 ). Landowner plaintiffs include, in order of appearance: case No. CV09-00231: Gary L. Brown and Sharon Brown; William R. Butler and Peggie L. Butler; Janet Farmer; Andrea C. Fox and Lynn K. Fox; William C. Goss; K. Ronald Morgan and Dorothea D. Morgan, individually and as trustees of the Orion Trust, LTD, dated October 1, 1993, and the Evergreen Trust, dated 1985; Patricia Qualls; George B. Wieck and Dorta Lee Wieck; Donald J. Wilson; Richard A. Guy and Edith E. White; case No. CV10-00255: James H. Brandt and Ellen E. Brandt, individually and as trustees of the James H. Brandt Trust, dated October 7, 2004; and case No. CV10-00264: Robert V. Kile and Dawn A. Kile, as cotrustees of the Kile Family Trust, dated October 13, 2004; Erik Weber and Sally Weber; Robert Cross; Kenneth J. Zeits and Jessie Zeits, as cotrustees of the Zeits Family Trust; and John Cosmez and Christine Cosmez. Grange Insurance Association appeared to recover damages paid to some of these landowner plaintiffs (case No. CV09-00245 ).
Landowner defendants include Ann McKeever Hatch, as trustee of the Hatch 1987 Revocable Trust; Richard L. Greene, as trustee of the Hatch Irrevocable Trust; Brooks Walker, Jr., as trustee of the Brooks Walker, Jr., Revocable Trust and the Della Walker Van Loben Sels Trust for the Issue of Brooks Walker; Jr.; Brooks Walker III, individually and as trustee of the Clayton Brooks Danielsen Trust, the Myles Walker Danielsen Trust, the Margaret Charlotte Burlock Trust, and the Benjamin Walker Burlock Trust; Leslie Walker, individually and as trustee of the Brooks Thomas Walker Trust, the Susie Kate Walker Trust, and the Della Grace Walker Trust; Wellington Smith Henderson, Jr., as trustee of the Henderson Revocable Trust; Elena D. Henderson; Mark W. Henderson, as trustee of the Mark W. Henderson Revocable Trust; John C. Walker, individually and as trustee of the Della Walker Van Loben Sels Trust for the Issue of John C. Walker; James A. Henderson; Charles C. Henderson, as trustee of the Charles C. and Kirsten Henderson Revocable Trust; Joan H. Henderson; Jennifer Walker, individually and as trustee of the Emma Walker Silverman Trust and the Max Walker Silverman Trust; Kirby Walker; and Lindsey Walker or Lindsey Walker-Silverman, individually and as trustee of the Reilly Hudson Keenan Trust and the Madison Flanders Keenan Trust.
Cottle allows a trial court overseeing complex civil litigation to require a party to present a prima facie claim establishing some element of their cause of action prior to trial in a nonstatutory procedure established by the trial court based on its "inherent equity, supervisory and administrative powers." (Cottle, supra, 3 Cal.App.4th at pp. 1376-1377, 1381,
The two appeals were consolidated for purposes of oral argument and decision only.
Water bars are berms or mounds designed to control erosion.
Undesignated statutory references are to the Health and Safety Code.
One plaintiff, California Engels Mining Company, dismissed the case against defendants with prejudice in exchange for a waiver of costs on the eve of trial and is not subject to the challenged order of dismissal.
We deny the multiple requests for judicial notice made in this court because the information presented therein, relating to the federal litigation premised on the Moonlight Fire and the amount of notice given prior to a Cottle hearing in two unrelated cases, is not relevant or necessary to our resolution of the issues on appeal in cases Nos. C074879 and C076008. (Evid. Code, §§ 452, 459.)
We would address plaintiffs' challenge to the dismissal based on the Cottle hearing regardless of how we rule on the dismissal pursuant to the motion for judgment on the pleadings because judgment on the pleadings was entered only as to one plaintiff and some of the defendants.
California Code of Regulations, title 14, section 938.8, subdivision (a) provides in relevant part: "The timber operator or his/her agent shall conduct a diligent aerial or ground inspection within the first [two] hours after cessation of felling, yarding, or loading operations each day during the dry period when fire is likely to spread. The person conducting the inspection shall have adequate communication available for prompt reporting of any fire that may be detected. ..."
Beaty and landowner defendants also joined in the motion, and Sierra Pacific argued it was applicable to all defendants excepting Howell, Crismon and Bush.
In its complaint, Cal Fire sought to recover its fire suppression costs under sections 13009 and 13009.1. To that end, it alleged that all defendants violated California Code of Regulations, title 14, section 938.8 (requiring inspection following certain timber operations) and were negligent in starting the Moonlight Fire and allowing it to spread; additionally, against Beaty and the landowner defendants, it alleged negligent management and use of land; against Sierra Pacific, Beaty, the landowner defendants, and Howell, it also alleged negligent supervision and inspection; and against Sierra Pacific alone it alleged negligence based on a peculiar risk.
Though section 19, which provides the statutory definition of "person," had not been enacted when the initial statute providing for recovery of fire suppression costs came into effect in 1931, it was enacted prior to this 1953 enactment of former sections 13007, 13008, and 13009. (See Stats. 1939, ch. 60, gen. prov. 19, pp. 483-484, amended by Stats. 1994, ch 1010, § 151, p. 6095 [adding "limited liability company" to the statutory definition of "person"].) At that time, it included, as it does today, "corporation" as a person. (Stats. 1939, ch. 60, gen. prov. 19, p. 484.) The Legislature was presumptively aware of this when it enacted section 13009 in 1953. (People v. Scott(2014)
This amount does not include the award of $650,634 adjusted by a 1.2 lodestar (for a total of $780,760.80) ordered by the trial court to Sierra Pacific as fees incurred in making its motion for fees, expenses, and/or sanctions. Thus, though the total amount the trial court ordered Cal Fire to pay to Sierra Pacific in its order awarding fees, expenses, and/or sanctions was $21,881,484, the total amount of sanctions and prevailing party attorney fees awarded was $21,100,723.20.
Contrary to Cal Fire's claim, we do not believe the trial court's rulings on discovery sanctions are an improper decision on the merits of the case depriving Cal Fire of its right to a jury trial. Rather, the trial court is required to consider the evidence presented to determine whether a misuse of the discovery process has occurred. Here, the claimed misuses included false testimony by a witness and false discovery responses. Thus, the trial court was obliged, upon receiving defendants' motions for sanctions, to consider and weigh the evidence presented to it to make a determination on the merits of the claims of discovery abuse.
WiFITER was a fund established without statutory authorization by Cal Fire and managed by the California District Attorneys Association. The fund, which was established to promote fire investigations and improve training, collected more than $3.6 million dollars through civil cost recovery negotiated settlements before it was closed in April of 2013 following a report from the State Auditor.
See footnote 14, ante, page 32.
Qualcomm was vacated in part on other grounds as stated in Qualcomm Inc. v. Broadcom Corp.(S.D.Cal., Apr. 2, 2010, No. 05cv1958-B (BLM)), 2010 U.S.Dist. Lexis 33889.
We note also that the trial court awarded expert fees as part of its costs award to Sierra Pacific, despite the absence of any Code of Civil Procedure section 998 offer in the record. That costs award has been reversed and remanded, as discussed in part I., ante.
Further section references are to the Health and Safety Code.
Cottle v. Superior Court(1992)