Opinion
E052560 Super.Ct.No. FSB051477
09-07-2011
THE PEOPLE, Plaintiff, v. JUSTIN COX, Defendant, Objector and Appellant; LEXISNEXIS RISK SOLUTIONS, INC., Movant and Respondent.
Justin Cox, in pro. per., for Defendant, Objector and Appellant. Fingal, Fahrney & Clark and Christopher R. Clark for Movant and Respondent. No appearance by Plaintiff.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, Judge. Reversed with directions.
Justin Cox, in pro. per., for Defendant, Objector and Appellant.
Fingal, Fahrney & Clark and Christopher R. Clark for Movant and Respondent.
No appearance by Plaintiff.
STATEMENT OF THE CASE
Pursuant to the parties' stipulation, this opinion reverses the trial court's award of $750 to LexisNexis Risk Solutions, Inc., (LexisNexis) in attorney fees against Justin Cox (Cox). The attorney fees were incurred filing a motion to quash a subpoena duces tecum issued by Cox in pro. per. requiring LexisNexis to appear and produce documents at a trial in which Cox was defending himself against criminal charges. The trial court granted the motion to quash and, finding that "the subpoena was issued without substantial justification, [] [and] the requirements of the subpoena were oppressive," awarded attorney fees under Code of Civil Procedure section 1987.2, subdivision (a),because (1) the subpoena was improperly served, (2) LexisNexis did not have the requested documents, (3) the documents were available online, (4) defendant failed to show the relevance of the documents, and (5) counsel for LexisNexis met and conferred with defendant about the defects in the subpoena to no avail.
As relevant here the subdivision states, "[I]n making an order pursuant to motion [to quash a subpoena], the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney's fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive."
After the record was filed, but before filing the appellant's opening brief, the parties filed a "JOINT APPLICATION AND STIPULATION FOR REVERSAL OF THE TRIAL COURT'S SANCTION ORDER . . . " (Joint Application). It notes that "[a]ppellant would contend that the trial court was without jurisdiction to award attorney's fees against a pro[.] per[.] defendant for pursuing his constitutional right to summon witnesses for his defense and would contend such fees are prohibited by Fabricant v. Superior Court (1985) 164 Cal. App. 3d[] 905." (The correct citation is Fabricant v. Superior Court (1985) 104 Cal.App.3d 905 (Fabricant).)The Joint Application further states that "[t]he parties are in agreement that it is in the interest of justice that [the] Court act favorably on this joint application for reasons which include: [¶] 1. Reversal of the sanctions order will place the parties in nearly the same position they would be if the appeal were successfully prosecuted to completion. [¶] 2. . . . [¶] [3.] The relief sought is consistent with applicable principles of California law." Thus, the parties tacitly recognize that the trial court erred in awarding LexisNexis the $750 in attorney fees to file the motion to quash appellant's subpoena duces tecum.
The court in Fabricant says in pertinent part, "Power to quash subpoenas in criminal cases, where the witness could offer no relevant testimony, was established by case law before the 1976 amendments to the Code of Civil Procedure. [Citations.] These cases did not, however, deal with the court's power to impose sanctions in connection with quashing subpoenas.
"It must also be borne in mind that at the time of the enactment of Code of Civil Procedure sections 1987.1 and 1987.2, our Supreme Court had decided Pitchess v. Superior Court (1974) 11 Cal.3d 531, 536 [113 Cal.Rptr. 897, 522 P.2d 305], holding civil discovery procedures inapplicable in criminal cases . . . .
"The Legislature, moreover, was confronted with the requirements of article I, section 15 of our state Constitution, paragraph 2 of which guaranteed criminal defendants the right 'to compel attendance of witnesses in the defendant's behalf.' It probably considered the imposition of sanctions for an attempt to exercise this right might tend unduly to chill the vigor of the defense which would be undertaken in behalf of criminal defendants.
"Considered in combination, the foregoing factors compel the conclusion that Code of Civil Procedure sections 1987.1 and 1987.2 apply only in civil matters. . . .
"Respondent court has, moreover, pointed to no recognized equitable exceptions to this general rule. Consequently, under the rule in Bauguess [v. Paine (1978) 22 Cal.3d 626, 634-639], we conclude that an award of fees to the attorney witnesses was not authorized as a sanction under the court's inherent power to control proceedings." (Fabricant, supra, 104 Cal.App.3d at p. 915.)
Thus, given the apparent applicability of Fabricant, the parties appear to have agreed for purposes of the Joint Application that the superior court erred in awarding the attorney fees.
We will apply the provisions of Code of Civil Procedure section 128, subdivision (a)(8) to the parties' stipulation. Although the civil statute might arguably not apply in a criminal proceeding, as was the case with Code of Civil Procedure sections 1987.1 and 1987.2 in Fabricant, the principles involved do seem applicable. (Compare In re Rashad H. (2000) 78 Cal.App.4th 376, 380 (Rashad)[applying statute to stipulated reversal in dependency case].)
"(a) Every court shall have the power to do all of the following: [¶] . . . [¶] "(8) To amend and control its process and orders so as to make them conform to law and justice. An appellate court shall not reverse or vacate a duly entered judgment upon an agreement or stipulation of the parties unless the court finds both of the following: [¶] (A) There is no reasonable possibility that the interests of nonparties or the public will be adversely affected by the reversal. [¶] (B) The reasons of the parties for requesting reversal outweigh the erosion of public trust that may result from the nullification of a judgment and the risk that the availability of stipulated reversal will reduce the incentive for pretrial settlement." (Code Civ. Proc., § 128, subd. (a)(8).)
Three factors are set forth for evaluating stipulated reversals: (1) any adverse effect on nonparties or the public; (2) any erosion of public trust that may result from the reversal of the judgment; and (3) any reduction in the incentive to settle during the trial court proceedings. The first factor does not appear to be a problem here as the dispute is only between appellant and LexisNexis, and no effect on the public is apparent. The second factor does not weigh against reversal because of the apparent error involved; if anything, reversing an erroneous judgment increases the public's trust in the judiciary. (Compare Rashad, supra, 78 Cal. App. 4th at p. 381 ["Public trust in . . . the judiciary is advanced by [a stipulated reversal] . . . premised on . . . judicial error in the trial court."].) The third factor simply does not apply in this case in which little opportunity for settlement could be afforded in this brief, collateral proceeding in a criminal case.
DISPOSITION
Based on this analysis, the stipulated reversal is approved.
Pursuant to the Joint Application, the order filed October 25, 2010, awarding $750 in attorney fees to LexisNexis is reversed. Also pursuant to the Joint Application (1) in the interests of justice, the parties shall bear their own costs on appeal (Cal. Rules of Court, rule 8.278(a)(5)), and (2) the clerk is directed to issue the remittitur immediately. (Cal. Rules of Court, rules 8.272(c)(1), 8.366(a).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
King
Acting P.J.
We concur:
Hollenhorst
J.
Richli
J.