Opinion
A146607
09-20-2017
ROBIN KAY, AS TRUSTEE OF THE KAY FAMILY REVOCABLE TRUST, Plaintiff and Appellant, v. HELENE WASSERMAN AND RALPHS GROCERY COMPANY, Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. CGC-11-510717)
Appellant Robin Kay, as trustee of the Kay Family Revocable Trust, is the successor to the original plaintiff, Philip Kay, who died while this case was pending. Philip Kay is a former attorney who brought this action against Helene Wasserman and Ralphs Grocery Company (Ralphs) over their connection with a State Bar adjudication that resulted in his suspension. The trial court granted summary judgment in favor of Wasserman and Ralphs, holding that the uncontroverted evidence demonstrated that neither Wasserman nor Ralphs was a state actor or acting under color of law to support claims under title 42 of the United States Code section 1983 (section 1983). We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Wasserman is an attorney in private practice, who was retained by Ralphs to represent it in a remanded trial on punitive damages (the "Gober II trial"). The opposing parties were represented by Philip Kay. Judge Michael Anello presided over the Gober II trial, which was hard-fought and cantankerous. Wasserman sought to have Philip Kay disqualified, and he reported her to the State Bar. Following a $30 million jury verdict in favor of Philip Kay's clients, Judge Anello granted Ralphs's post-trial motion for a new trial. The court believed Philip Kay's conduct improperly inflamed the jury and "resulted in a verdict framed by passion and prejudice." Judge Anello referred Philip Kay to the State Bar on the grounds that he violated various provisions of the State Bar Act and the Rules of Professional Conduct. As a result, the State Bar undertook a multi-year investigation into Philip Kay's conduct.
Although Wasserman was not involved in the complaint to the State Bar submitted by Judge Anello, the State Bar contacted her as part of its investigation. At the request of the State Bar, Wasserman provided various case documents, including a copy of trial transcripts and a docket sheet for the Gober II trial. She also provided background information regarding the Gober II trial and reported that the court denied her motion for judgment notwithstanding the verdict but granted her motion for a new trial based on Philip Kay's misconduct. She communicated with the State Bar at least three times between 2003 and 2005. Wasserman did not have any other involvement in the State Bar investigation and did not communicate with any other individuals about the investigation.
Ralphs was not involved in the complaint submitted to the State Bar, did not have even minimal contact with the State Bar during its investigation, and did not provide the State Bar with any information or documents. Ralphs's only connection to the State Bar investigation was through Wasserman, who had served as its counsel in the Gober II trial.
Following its investigation, the State Bar filed a Notice of Disciplinary Charges against Philip Kay. The notice was based on the Gober II trial and three other litigation matters. One of those matters, Gober I, involved Ralphs but not Wasserman. The other two matters involved neither Ralphs nor Wasserman. Wasserman and Ralphs did not testify at the State Bar trial. Following the trial, the State Bar court made various findings regarding Philip Kay's litigation conduct, including that he "was repeatedly unprofessional, disrespectful, and rude to the court, opposing counsel, witnesses, parties and all participants." The State Bar Court recommended that he be suspended from the practice of law for three years. These findings arose from Philip Kay's conduct in the Gober II trial, in the other litigation matters that were part of the State Bar's investigation, and during the State Bar trial.
Philip Kay subsequently filed this action. All causes of action against Wasserman and Ralphs were dismissed except for claims under section 1983. Wasserman and Ralphs then moved for summary judgment on these remaining claims arguing, among other things, that they did not act under color of state law. By this time, Robin Kay was Philip Kay's successor, and she opposed the motion claiming that Wasserman, while acting as Ralphs's counsel, coordinated with the State Bar to fabricate claims of professional misconduct. She argued that Wasserman and Ralphs acted under color of state law because Wasserman provided documents to, and had conversations with, the State Bar. She also requested a continuance of the summary judgment hearing because she was unable to depose two State Bar attorneys prior to her opposition filing deadline. The trial court granted summary judgment in favor of Wasserman and Ralphs, finding that they were not acting under color of state law and noting that Wasserman's contact with the State Bar was "limited." Judgment was entered in favor of Wasserman and Ralphs.
II.
DISCUSSION
A. The Summary Judgment Standard of Review.
Summary judgment is appropriate only if "there is no triable issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) We review de novo a decision granting summary judgment, " 'liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in favor of that party.' " (Ennabe v. Manosa (2014) 58 Cal.4th 697, 705.) But although our review is de novo, we are " 'not obligate[d] . . . to cull the record for the benefit of the appellant in order to attempt to uncover the requisite triable issues. As with an appeal from any judgment, it is the appellant's responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues . . . by citation to the record and any supporting authority.' " (Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 230.)
All further statutory references are to the Code of Civil Procedure.
A defendant meets his or her burden of demonstrating a cause of action has no merit by showing that an element of the cause of action cannot be established or that there is a complete defense to that cause of action. (§ 437c, subd. (p)(2).) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of a material fact exists to that cause of action or defense. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477; see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.)
B. The Trial Court Properly Found that the Section 1983 Claims Presented No Triable Issue.
" 'To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.' " (Arce v. Childrens Hospital of Los Angeles (2012) 211 Cal.App.4th 1455, 1472.) A private entity may be acting under "color of state law" if its actions are " 'fairly attributable' to the government." (Collins v. Womancare (9th Cir. 1989) 878 F.2d 1145, 1151.) Specifically, "[t]he Supreme Court has articulated four tests for determining whether a private individual's actions amount to state action: (1) the public function test; (2) the joint action test; (3) the state compulsion test; and (4) the governmental nexus test." (Franklin v. Fox (9th Cir. 2002) 312 F.3d 423, 444-445.) " ' "State courts look to federal law to determine what conduct will support an action under section 1983." ' " (Arce v. Childrens Hospital of Los Angeles, supra, 211 Cal.App.4th at p. 1472.)
Although Robin Kay does not articulate which theory she purports to assert against defendants, her briefs, and the cases cited therein, focus on liability arising from the joint action test. (See Dennis v. Sparks (1980) 449 U.S. 24, 27-28; Crowe v. County of San Diego (9th Cir. 2010) 608 F.3d 406, 440.) We therefore address only that test.
In any event, the other tests do not appear to apply. "Under the public function test, a private party's conduct constitutes state action when the private party exercises powers that are ' "traditionally the exclusive prerogative of the State." ' " (Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360, 397.) Conveying information to the State Bar as part of its investigation is not a power that is traditionally the exclusive prerogative of the State. "[U]nder the state compulsion test, the court considers 'whether the coercive influence or "significant encouragement" of the state effectively converts a private action into a government action.' " (Id. at p. 399.) Robin Kay does not cite any evidence to suggest Wasserman and Ralphs were compelled or influenced by the State. Finally, "[t]he government nexus test asks whether ' "there is such a close nexus between the State and the challenged action that the seemingly private behavior may be fairly treated as that of the State itself." ' " (Id. at p. 398.) Robin Kay has not identified any such nexus beyond the alleged joint action discussed above.
The joint action test examines "whether state officials and private parties have acted in concert in effecting a particular deprivation of constitutional rights." (Franklin v. Fox, supra, 312 F.3d at p. 445.) This requirement can be satisfied either "by proving the existence of a conspiracy or by showing that the private party was 'a willful participant in joint action with the State or its agents.' " (Ibid.) Ultimately, joint action exists when the state has " ' " 'so far insinuated itself into a position of interdependence with [the private actor] that [the private actor] must be recognized as a joint participant in the challenged activity.' " ' " (Julian v. Mission Community Hospital, supra, 11 Cal.App.5th at p. 398.)
In support of the section 1983 claims, Robin Kay asserts that Wasserman conspired with the State Bar to "deny [Philip] Kay his fundamental constitution right to due process." To establish liability for a conspiracy, the plaintiff must show " 'an agreement or "meeting of the minds" to violate constitutional rights.' " (Franklin v. Fox, supra, 312 F.3d at p. 441.) " '[E]ach participant in the conspiracy need not know the exact details of the plan, but each participant must at least share the common objective of the conspiracy.' " (Ibid.) Alternatively, Robin Kay must show that Wasserman participated in "joint action" with the State Bar to deprive Philip Kay of his federal constitutional rights. (Id. at p. 441.) None of the evidence Robin Kay offered in opposition to defendants' summary judgment motion created a triable issue that Wasserman and Ralphs engaged in either a conspiracy or joint action.
Instead, Robin Kay merely speculates that Wasserman conspired or engaged in joint action to fabricate false allegations against Philip Kay. She asserts, for example, that Wasserman "began communicating" and had "conversations" with the State Bar. The only specific claim she makes in this regard, however, is that Wasserman falsely informed the State Bar that Philip Kay's misconduct was the basis for the new trial granted to Ralphs. But allegations are insufficient; Robin Kay must oppose a summary judgment motion with competent evidence. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 720 fn. 7 [party opposing summary judgment must demonstrate presence of triable issue by affidavits, declarations, admissions, or other competent evidence]; Doe v. Salesian Society (2008) 159 Cal.App.4th 474, 481 [evidence "based on speculation, imagination, guesswork, or mere possibilities" insufficient to raise triable issue].) Instead, the evidence offered by Robin Kay—the trial court order—contradicts her position.
Robin Kay also asserts more generally that Wasserman "blatantly lied" to the State Bar "about [Philip] Kay's supposed misconduct . . . which accusation became the principal evidence on which the State Bar based its charges of [Philip] Kay's supposed misconduct in the Gober II case." However, filing a complaint with a government entity, even if it forms the basis of a subsequent state action, does not convert a private party into a state actor. (Collins v. Womancare, supra, 878 F.2d at p. 1155; Sims v. Jefferson Downs Racing Association, Inc. (5th Cir. 1985) 778 F.2d 1068, 1078-1079.) Rather, the plaintiff must show that the state "acted in accordance with a 'preconceived plan' . . . without independent investigation." (Sims v. Jefferson Downs Racing Association, Inc., supra, 778 F.2d at p. 1079.) Robin Kay has not identified a preconceived plan. Nor has she shown that the State Bar failed to make an independent investigation. To the contrary, the record shows that the State Bar sought information and documents from the presiding trial court judges and Philip Kay's counsel, and the charging notice appears based on the State Bar's analysis of the pre-trial and trial transcripts.
Robin Kay also argues that Wasserman and Ralphs were motivated by a desire to have Philip Kay suspended. But she does not cite any evidence to suggest such an intent. (See Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 195 [court may decline to consider arguments not supported by citations to the record].) At most, the record suggests that Wasserman may have been motivated to aid the State Bar in collecting information about Philip Kay's litigation tactics. Such motivation is insufficient to infer a "common objective" between Wasserman and the State Bar to have Philip Kay falsely prosecuted and suspended. (See, e.g., Crowe v. County of San Diego, supra, 608 F.3d at pp. 440-441.)
None of the proffered evidence supports a reasonable inference that Wasserman conspired or engaged in joint action with the State Bar to deprive Philip Kay of his federal constitutional rights. There is no dispute that Wasserman communicated with the State Bar during the course of the State Bar's investigation into Philip Kay's misconduct. But the mere fact that such communication occurred does not equate to a conspiracy or joint action. Robin Kay offers no evidence to suggest that this communication went beyond the normal exchange of information that occurs in any State Bar investigation. While she makes repeat references to "false information" provided by Wasserman, she cites no supporting evidence in the record. As such, Robin Kay has failed to raise a triable issue of fact as to her section 1983 claims.
Because Robin Kay has failed to produce competent evidence showing that a triable issue of fact exists as to whether defendants acted under color of state law, we do not need to reach her argument that Wasserman's communications to the State Bar were not privileged. We likewise do not need to address the other issues raised in the respondents' brief.
C. The Trial Court Properly Denied Robin Kay's Request for a Continuance of the Hearing to Obtain Discovery.
Robin Kay argues that she was unable to fully oppose summary judgment because she could not obtain the depositions of two State Bar attorneys. The trial court concluded that she was not entitled to a continuance because the matter had been pending since 2011, and she had failed to justify the lengthy delay in seeking these depositions.
Section 437c, subdivision (h) provides: "If it appears from the affidavits submitted in opposition to a motion for summary judgment . . . that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had or make any other order as may be just." Even if a plaintiff fails to meet the technical requirements of section 437c, subdivision (h), a plaintiff may still be entitled to a continuance upon a showing of good cause that a continuance is needed. (Hamilton v. Orange County Sheriff's Dept. (2017) 8 Cal.App.5th 759, 765.) " '[I]n deciding whether to continue a summary judgment [motion] to permit additional discovery courts consider various factors, including (1) how long the case has been pending; (2) how long the requesting party had to oppose the motion; (3) whether the continuance motion could have been made earlier; (4) the proximity of the trial date or the 30-day discovery cutoff before trial; (5) any prior continuances for the same reason; and (6) the question whether the evidence sought is truly essential to the motion.' " (Ibid., citing Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 644.)
The trial court's denial of a continuance is reviewed under the abuse of discretion standard. (Desaigoudar v. Meyercord (2003) 108 Cal.App.4th 173, 190.) " 'Where the issue on appeal is whether the trial court has abused its discretion, the showing necessary to reverse the trial court is insufficient if it presents facts which merely afford an opportunity for a different opinion: "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. To be entitled to relief on appeal from the result of an alleged abuse of discretion it must clearly appear that the injury resulting from such a wrong is sufficiently grave to amount to a manifest miscarriage of justice[.]" ' " (Corbett v. Hayward Dodge, Inc. (2004) 119 Cal.App.4th 915, 927.) "In exercising its discretion the court may properly consider the extent to which the requesting party's failure to secure the contemplated evidence more seasonably results from a lack of diligence on his part." (Rodriguez v. Oto (2013) 212 Cal.App.4th 1020, 1038.)
No abuse of discretion appears here. Robin Kay did not submit an affidavit that met the requirements of section 437c, subdivision (h). Specifically, her counsel's declaration did not adequately demonstrate "that facts essential to justify opposition may exist" or why they could not be presented. (See § 437c, subd. (h).) The only statement before the court was the attorney's bald assertion that the allegations of misconduct arose from conversations between Wasserman and the State Bar, and plaintiff was entitled to investigate those conversations. Section 437c, subdivision (h), requires more. The declaration in support of the continuance must identify specific facts that would show the existence of controverting evidence. (See Chavez v. 24 Hour Fitness USA, Inc., supra, 238 Cal.App.4th at p. 643 [" 'party seeking the continuance must justify the need, by detailing . . . the particular essential facts that may exist' "].) No such details were provided. Likewise, the declaration did not provide " 'justification for the failure to have commenced the use of appropriate discovery tools at an earlier date.' " (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 255-256, citing FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69, 76.) Instead, the declaration only discussed the challenges Robin Kay faced when she attempted to serve the subpoenas.
Nor has Robin Kay demonstrated that good cause exists to justify a continuance. She states she was unable to depose a State Bar attorney because the State Bar objected to the issued subpoena. But she does not claim that such an objection was unexpected. To the contrary, defense counsel raised such a possibility back in 2012. Nor can Robin Kay claim that unanticipated arguments in defendants' summary judgment papers triggered the need for such discovery. These same issues were raised and briefed in 2011 and early 2012 as part of defendants' demurrer to the Second Amended Complaint and defendants' motion to stay the litigation. Despite being aware of defendants' arguments regarding the applicability of section 1983 and the potential challenges of obtaining discovery from the State Bar, Robin Kay agreed to shorten the statutory notice period for defendants' summary judgment motion. Even after being served with the summary judgment motion, she did not immediately serve the subpoenas at issue. She appears to have served one deposition subpoena on the State Bar less than a month before her opposition was due and to set a deposition date only a few days prior to her opposition deadline—providing herself with no time to resolve any potential conflicts. She offers no justification for this delay.
Robin Kay offers no excuse for her failure to depose former State Bar employee Alan Konig. In fact, it appears that she never managed to serve that subpoena. --------
The trial court was more than entitled to conclude that Robin Kay failed to show that relief under section 437c, subdivision (h) was appropriate. The court thus acted within its discretion in denying the request for a continuance.
III.
DISPOSITION
The judgment is affirmed. Respondents may recover their costs on appeal. (Cal. Rules of Court, rule 8.278, subds. (a)(1), (2).)
/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Dondero, J.