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Trost v. Lowe's Companies, Inc.

California Court of Appeals, Second District, Seventh Division
Mar 17, 2008
No. B195280 (Cal. Ct. App. Mar. 17, 2008)

Opinion


DAVID TROST et al., Plaintiffs and Appellants, v. LOWE'S COMPANIES, INC. et al., Defendants and Respondents. B195280 California Court of Appeal, Second District, Seventh Division March 17, 2008

NOT TO BE PUBLISHED

APPEAL from an order of the Los Angeles Superior Court, No. PC037747 Barbara M. Scheper, Judge. Reversed and remanded.

Haggai Law Firm, Christa R. Haggai; Law Offices of David R. Brien and David R. Brien for Plaintiffs and Appellants.

Tharpe & Howell, Gene B. Sharaga and William D. Gardner for Defendants and Respondents.

ZELON, J.

In a post-dismissal proceeding seeking costs in a personal injury action, plaintiff and appellant Harriet Trost was ordered to pay sanctions after the court granted an ex parte motion to quash subpoenas she served on counsel for defendant and respondent, Lowe’s Inc. Because we conclude that sanctions were not properly awarded in that proceeding, we reverse and remand.

FACTUAL AND PROCEDURAL HISTORY

This personal injury action was brought by David and Harriet Trost after David was injured when a bathroom fixture fell and hit him at a Lowe’s store. The Trost’s filed their complaint on November 2, 2005.David later accepted Lowe’s offer under Code of Civil Procedure section 998 , but Harriet did not reach an agreement with Lowe’s for her loss of consortium claim. After the parties attempted unsuccessfully to negotiate terms under which the case could be transferred to limited jurisdiction, Harriet voluntarily dismissed her claim.

We refer to plaintiffs and appellants by their first names for clarity, and not out of disrespect.

All further statutory references are to the Code of Civil Procedure.

The settlement that David entered provided that each party would bear its own costs; Lowe’s, however, filed a cost bill after Harriet’s dismissal. Believing that the claim improperly included costs never expended, as well as costs associated with David’s claims, Harriet filed a motion to tax costs. Counsel for Lowe’s filed declarations in response and Harriet served subpoenas on counsel for the hearing on the motion to tax.

On August 28, 2006, Lowe’s filed an ex parte motion, seeking in the alternative to quash the subpoenas, and for sanctions, or for an order shortening time to seek a protective order or motion to quash. Harriet’s attorney appeared, but the court did not permit argument by either counsel. The court granted the motion to quash and awarded sanctions in the amount of $790.

The amount was later reduced, without explanation, to $527.50, the same amount awarded in costs.

The court heard the motion to tax costs on September 25, 2006, and granted the motion in part. Although the notice of ruling prepared by Lowe’s counsel indicated that the court had ordered the payment of the previously awarded sanctions, neither the court’s tentative ruling nor the judgment for costs referred to those sanctions. No transcript of the hearing was prepared. This timely appeal followed.

DISCUSSION

Harriet contends that ordering sanctions on an ex parte basis is a violation of her due process rights because an order affecting the rights of a party may not be issued without notice and an opportunity to be heard. Although Lowe’s does not dispute that she was not given the opportunity to be heard at the time of the ex parte, it asserts that she has no statutory basis for her claim, and that there is no due process violation. Lowe’s further asserts that, in any event, because a properly noticed hearing at which both parties had the opportunity to be heard followed the ex parte proceedings, any due process requirements were satisfied. Lowe’s argument falls short.

For sanctions to be awarded, it is the general rule that adequate notice is required as a matter of due process by both the United States Constitution and the California constitution. (In re Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1220.) The requirement of notice whenever the rights of a party may be affected by the order sought (McDonald v. Severy (1936) 6 Cal.2d 629, 631) protects the right of that party to be heard.

The statutes at issue here, sections 1987.1 and 1987.2. provide for the filing of motions to quash by a party, but are silent, unlike the discovery statutes, on whether notice and a hearing is required before sanctions may be awarded. We do not read into the silence of a statute, however, the intent of the Legislature is that no hearing is required. The fact that the statute uses the term “motion” rather than “application” itself implies a procedural concern for the parties’ rights. (See St. Paul Fire and Marine Ins. Co. v. Superior Court (1984) 156 Cal.App.3d 82, 85; Titmas v. Superior Court (2001) 87 Cal.App.4th 738, 743.)

Section 1987.1 states as follows: When a subpoena requires the attendance of a witness or the production of books, documents or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by the party, the witness, any consumer described in Section 1985.3, or any employee described in Section 1985.6, or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon such terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the parties, the witness, the consumer, or the employee from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the witness, consumer, or employee. Nothing herein shall require any person to move to quash, modify, or condition any subpoena duces tecum of personal records of any consumer served under paragraph (1) of subdivision (b) of Section 1985.3 or employment records of any employee served under paragraph (1) of subdivision (b) of Section1985.6.”

In Titmas, the court, as was the court here, was faced with an ex parte motion to quash subpoenas. There, as here, the local rules concerning the giving of notice for an ex parte were satisfied, and there, as here, the court decided the matter without providing to the parties an opportunity to be heard. While the issue there was the ability of one party to assert the attorney-client privilege, rather than an award of monetary sanctions, the essential concerns require the same analysis. “Because of basic due process concerns, law and motion judges are always on shaky ground where they ‘entirely bar parties from having a say.’” (Titmas v. Superior Court, supra, 87 Cal.App.4th at p. 742.) There, as here, the party seeking relief asserted that section 1987.1 is silent as to hearings, and argued that while the issues were important, the party had not been deprived of any property rights. But Harriet has: while the amount at issue is small, it is her property nonetheless.

Lowe’s argues that Harriet improperly relies on authority in discovery disputes, because there the Legislature provided an explicit right to be heard. Cases decided under statutes that do provide an explicit right to notice and a hearing are informative, however, because courts faced with the issue have looked beyond the language of the statute to the scope of the due process protections. For example, in a case involving a request for sanctions for bad faith under section 128.5, the court concluded that due process requires not only notice, but also an adequate hearing. Reasoning that just as In re Marriage of Flaherty (1982) 31 Cal.3d 637 required an opportunity to respond and to be heard before penalties could be imposed for filing a frivolous appeal, sanctions at the trial court level required no less, the court found that holding a hearing without giving counsel an adequate opportunity to be heard precluded the award of monetary sanctions. (Lesser v. Huntington Harbor Corp. (1985) 173 Cal.App.3d 922, 933-936.)

Cases under the discovery statutes are explicit concerning the rights of the parties: “A sanction order issued ex parte is void.” (Parker v. Wolters Kluwer United States, Inc. (2007) 149 Cal.App.4th 285, 296.)

“Plaintiff’s rush to compel sanctions against defendant on an ex parte basis was a flagrant violation of due process principles. The California Supreme Court has ruled that due process requires fair warning and an opportunity to respond before penalties can be imposed for prosecution of a frivolous appeal. [Citation.] ‘Constitutional due process principles are offended by the summary imposition of sanctions by the appellate courts.’ [Citation.] Ex parte imposition of sanctions by a superior court, as in the case at bench, is equally offensive.” (O’Brien v. Cseh (1983) 148 Cal.App.3d 957, 962.)

DISPOSITION

In this case, while notice was proper, the failure to permit Harriet to be heard before sanctions were ordered deprived her of her due process rights. The award of sanctions must be reversed and the matter remanded for a hearing in accordance with this opinion. Appellant is to recover her costs on appeal.

We concur: PERLUSS, P. J., WOODS, J.

Section 1987.2 states as follows: “In making an order pursuant to motion made under subdivision (c) of Section 1987 or under Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorneys’ 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.”


Summaries of

Trost v. Lowe's Companies, Inc.

California Court of Appeals, Second District, Seventh Division
Mar 17, 2008
No. B195280 (Cal. Ct. App. Mar. 17, 2008)
Case details for

Trost v. Lowe's Companies, Inc.

Case Details

Full title:DAVID TROST et al., Plaintiffs and Appellants, v. LOWE'S COMPANIES, INC…

Court:California Court of Appeals, Second District, Seventh Division

Date published: Mar 17, 2008

Citations

No. B195280 (Cal. Ct. App. Mar. 17, 2008)