Reedy v. Bussell

Filed 2/23/07 Reedy v. Bussell CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Robert D. Monarch, Judge. (Retired Judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.) Dismissed.

William Salzwedel for Defendants and Appellants.

Meserve, Mumper & Hughes, and Bernard A. Leckie; Alan M. Reedy for Plaintiff and Respondent.

Litigation can be a means of achieving great things: the righting of wrongs, the resolution of disputes and the creation of important precedents. Other times, it seems to just make people crazy, and cause them to lose perspective. This appeal is an example of the latter.

Letantia and Todd Bussell appeal from the courts denial of their request to correct the language of a minute order language they contend misleadingly suggests they did not oppose the imposition of terminating sanctions against them in the underlying litigation. They assert this minute order is potentially prejudicial because its disputed language might be a basis for respondent Jacqueline Reedy to contend they waived their right to appeal from the judgments subsequently entered against them.

In her opposition, Reedy expressly disavowed any such contention; freely admitting the record demonstrates the Bussells did oppose the terminating sanctions; and conceding they are entitled to challenge the imposition of those sanctions on appeal. In other words, Reedy took the position that the language of the disputed minute order was simply irrelevant. However, that happy concession did not stop her from filing a 13-page opposition brief, which devoted substantial energy to asserting that the courts refusal to correct its inconsequential minute order was not actually an appealable event.[1]

Not to be dissuaded by Reedys concession on the point of their main concern, the Bussells then filed a seven-page reply brief, insisting the erroneous minute order does too matter, even if Reedy doesnt see it. The Bussells also filed a separate motion asking us to make a factual determination that they did argue in opposition to the sanctions.

But it doesnt matter, as everyone agrees the underlying record, taken as a whole, properly reflects that the Bussells did not wave their right to appeal the underlying judgments. This appeal tis much way too much ado about nothing. Our only dilemma is a rather esoteric conundrum: Can we address the issue of mootness before resolving appealability? We conclude, that in a case such as this, where mootness is clear and appealability somewhat less so, we can. The appeal is dismissed as moot.[2]

* * *

The underlying litigation consisted of five probate petitions, each of which related to one of three trusts set up to benefit the family of Helen Chamness Bussell. The course of the litigation was anything but smooth, and several discovery disputes remained unresolved when trial commenced in April of 2005. At that time, the court took under submission Reedys motion for discovery sanctions including terminating sanctions against the Bussells. The parties conducted their trial for several days, before the court recessed the proceedings for a period to allow the parties to explore mediation.

The mediation effort failed, and the trial was scheduled to recommence on August 22, 2005. However, on July 27, 2005, Reedy filed an ex parte motion to quash the Bussells subpoena for the deposition of the notary public who had notarized Helen Bussells signature on a contested trust amendment at issue in the pending trial. Reedy pointed out, among other things, that the time for taking new discovery in connection with the pending trial had long passed. When asked to cancel the proposed deposition, the Bussells denied that the deposition was being sought in connection with the pending trial, and asserted instead that it was sought in connection with a different petition (regarding a different trust), which had not yet been set for trial.

At the ex parte hearing, the court denied immediate relief, but directed that the deposition date be reset pending a hearing on the motion to quash. It set that hearing for August 12, 2005. The Bussells then filed their opposition, arguing the deposition subpoena was valid and properly served, and that the notarys testimony was relevant to issues also raised in two later petitions Todd had filed, which were not included in the pending trial.

On August 11, one day before the hearing, Reedy filed an ex parte request that the court quash an additional 11 depositions scheduled by the Bussells to take place prior to the recommencement of the pending trial on August 22, 2005, and requested that the court impose the previously requested issue and terminating sanctions.

The Bussells regular counsel, William Salzwedel, was not present at the hearing. Instead, another attorney appeared on his behalf, telling the court Salzwedel was occupied in another court room. The court informed the parties of his tentative decision to quash the deposition subpoenas and impose the previously requested terminating sanctions, and invited argument. The attorney appearing in Salzwedels stead explained: Your honor, in my discussions with Mr. Salzwedel . . . he stated that the discovery that was requested by him is on two petitions that are separate from the five petitions that are currently in trial. The court responded, I understand that. Counsel went on: [T]herefore its [Salzwedels] position that he has the right to discovery on these two petitions, because they are not the petitions that are the subject of the trial. When the court inquired if counsel wanted to add anything further, she responded [t]hats all I can add to this.

The court then announced that the tentative ruling would be made the order of the court, and the hearing concluded. Later that same day, the clerk issued a minute order which reflected the following: In open court, at 1:40 p.m. Petitioner submitted on the Courts tentative rulings. No argument by respondents. The Courts tentative ruling became the order of the Court.

On October 26, 2005, the Bussells filed a motion for a nunc pro tunc order correcting the August 12, 2005 minute order, so that it properly reflected that an argument had been proffered on their behalf. The motion was supported by both a declaration of the attorney who had appeared in place of Salzwedel, and a transcript of the proceedings each of which reflected the comments made by the attorney on the record at the ex parte hearing.

The court denied the motion, explaining that the attorney who appeared at the ex parte hearing did not add anything of substance to the matters before the court and the matters taken under submission. She merely repeated a contention of Mr. Salzwedel already set forth in his pleadings. Her comments added nothing to the legal analysis of the court and did not constitute substantive legal argument. Accordingly, the minute order prepared by the clerk is correct and the requested change is not appropriate.

It is from that order, denying their request to correct the minute order, that the Bussells appeal. They contend, in a nutshell, that the portion of the minute order reflecting that they offered no argument in opposition to the orders of August 12, 2005, is inconsistent with the record which demonstrates they both filed written opposition, and opposed the courts tentative at the hearing and should have been corrected. They are concerned that in the absence of correction, the minute order might theoretically be construed as evidence they acquiesced in the courts decision to impose discovery sanctions against them, and constitute a basis for dismissing their separate appeals from the judgments in the case.

They didnt and it isnt. In a separate opinion, we have resolved the main appeal, and the contretemps about the language of the minute order was never raised, and played no part in our analysis of the case. The issue is consequently moot. A court will not continue with the review of an . . . award . . . if the award does not affect the present relations of the parties, . . . (Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 862.)

Of course, had the issue been raised, it could have properly been resolved in the context of that other appeal. Our power to resolve apparent conflicts between the language of a minute order and other aspects of the trial court record does not depend upon the filing of a separate appeal; it depends upon the existence of a record to evaluate. (See, e.g., People v. Carter (2003) 30 Cal.4th 1166; People v. Smith (1983) 33 Cal.3d 596, 599; In re Josue G. (2003) 106 Cal.App.4th 725, 731, fn. 4.)

The appeal is dismissed. Each side is to bear its own costs on appeal.

BEDSWORTH, J.

WE CONCUR:

SILLS, P. J.

FYBEL, J.

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[1] Reedy made the same assertion in a separately filed motion to dismiss the appeal.

[2] In light of that conclusion, both Reedys motion to dismiss, and the Bussells motion for a factual determination are likewise dismissed as moot.