Monday, November 7, 2016

Assemblyman-Lawyer Is No Scheduling Trump Card

Verio Healthcare v. Superior Court, No. G053068 (D4d3 Oct. 12, 2016).

When a party’s attorney is also a member of the California Legislature, §§ 595 and 1054.1 of the Code of Civil Procedure provide, respectively, for continuances of trials or other matters so long as the Legislature is in session. But fifty years ago, the California Supreme Court held that it would violate the separation of powers to treat these statutes as entitling a litigant’s legislator-attorney a mandatory right to a stay a judicial proceeding. See Thurmond v. Superior Court, 66 Cal. 2d 836 (1967). 

The Court thus read the statutes as “merely directory”—a nice way of saying that the courts don’t need to follow them if they are inconvenient or get in the way of the court’s or the parties’ scheduling priorities. It then proceeded to list a number of factors applicable in deciding whether a legislator/attorney’s request for a continuance would be appropriately granted as an exercise of the trial court’s discretion. In the next session, however, the Legislature returned the favor by amending §§ 595 and 1054.1 to make clear that the right to a stay or continuance was, in fact, mandatory, so long as it doesn’t adversely impact the opposing party’s ability to obtain provisional remedies.

Defendant’s attorney here—a member of the state Assembly—invoked §§ 595 and 1054.1 to demand a nine-month stay of this litigation while the Legislature was in session. Although initially presented as a request for a discretionary stay, Defendant withdrew that motion and then took the position that a stay was mandatory upon its lawyer’s request. The trial court denied the stay nonetheless, reasoning that other attorneys at the legislator’s firm—a sizable regional firm with almost 120 lawyers in SoCal—could handle the case in his absence.

Defendant took a writ. Although the Court of Appeal initially issued a summary denial, the Supreme Court granted review, stayed the case, and transferred it back to the Court of Appeal with instructions to issue an order to show cause. Given that the requested stay was to end on October 1, 2016, all the time eaten up by the appellate wrangling rendered the case moot. But given the public policy issues implicated, the fact that the issue will likely similarly evade future review and, frankly, that the Supreme Court basically told the Court of Appeal to decide the case, the Court nonetheless reaches the merits.

The court denies a writ, for two reasons. First, it holds that the case falls within the exception for stays that implicate the opposing party’s rights to provisional remedies. The statutes permit the court to deny a stay when it would “abridge a right to invoke a provisional remedy.” See §§ 595(b), 1054.1(b) (emphasis added). They do not, by their own terms, require a provisional remedy to have already been invoked sometime before the stay was requested. In this case, there was no transcript of the hearing on the stay motion—it was heard ex parte in chambers without a reporter present. But based on the nature of the dispute—Plaintiff accused departing employees of stealing clients and information—it would be “common” for Plaintiff to seek a PI. And there was indeed some suggestion in the record that Plaintiff did intend (perhaps after getting some discovery) to seek a PI in this case. Moreover, Plaintiff also had a pending motion to disqualify counsel due to a conflict. The court notes that, in other contexts, a DQ is treated as a provisional remedy. So, particularly given the lack of a record showing otherwise, the trial court could have denied the request based on its potential to interfere with provisional remedies.

And in any event, the 1968 amendment to the statutes—making them mandatory, but adding the exceptions in their subdivisions (b)—did not cure the constitutional defects raised in Thurmond. The exceptions were not the only concerns raised in Thurmond, which was directed more fundamentally to the right of the judiciary to control its own proceedings as a matter of separation of powers. Cases subsequent to Thurmond have buttressed that point: Inflexible and mandatory legislative demands on the courts’ power to control their own dockets must be read as merely directory to avoid separation of powers concerns. See, e.g., People v. Engram, 50 Cal. 4th 1131 (2010) (statute that demanded courts give priority to criminal cases could not be read to inflexibly require superior courts to completely ignore civil cases to focus on criminal ones, even when criminal case backlogs were resulting in dismissals). As such, notwithstanding the amendment’s addition of a literal “mandatory” requirement, the court would continue to read them as merely directory.* Under the circumstances, were the requirement simply directory, the trial court did not abuse its discretion in denying a stay.

Writ denied.

*Wasn’t the proper remedy here just to invalidate the statute as unconstitutional? As the court expressly recognizes, the constitutionality of the statute in Engram was saved by a caveat to be “consistent with the ends of justice.” No such caveat was provided here. Instead, there was an arguably ambiguous statute, which the Supreme Court read as directory to save its constitutionality. Then the Legislature amended the statute to reverse the Supreme Court and close the ambiguity, making perfectly clear its intent to require mandatory application. It is well-established that although California courts do possess some authority to rewrite statutes to save their constitutionality, “such judicial action is improper when the suggested reformation is inconsistent with the Legislature's intent[.]” Kopp v. Fair Pol. Practices Com., 11 Cal. 4th 607, 643 (1995). Given the extremely clear textual intent to make the statutes here mandatory in the face of Thurmond, it’s pretty hard to pretend that the result here can be squared with what the Legislature actually wanted. So it seems like the proper remedy here would be to hold the statutes unconstitutional, not just to read them to mean something contrary to what they actually say.

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