Filed 11/19/19 Jones v. Southern Cal. Addiction Center, Inc. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

KRISTY JONES,

Plaintiff and Respondent,

v.

SOUTHERN CALIFORNIA ADDICTION CENTER, INC.,

Defendant and Appellant.

G056906

(Super. Ct. No. 30-2018-00972679)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Linda S. Marks, Judge. Reversed and remanded with directions. Motion to dismiss appeal denied. Motion for sanctions denied. Appellant’s request for judicial notice denied. Respondent’s request for judicial notice granted.

Law Offices of Michael Leight, Michael Leight, and Michelle Leight for Defendant and Appellant.

Atkinson, Andelson, Loya, Ruud & Romo, and Christopher S. Andre for Plaintiff and Respondent.

* * *

“Much Ado About Nothing” is a famous work of Shakespeare. It is also an accurate description of this appellate dispute—which ostensibly concerns the propriety of a court order allowing plaintiff Kristy Jones the right to inspect the books, records, and documents of Southern California Addiction Center (SCAC). We say “ostensibly” because the parties agree the trial court’s initial order allowing the inspection was overbroad since it failed to exclude documents that were protected by the attorney-client privilege. Thus, Jones did not oppose SCAC’s subsequent motions in the trial court to cure that overbreadth, which were heard while this appeal was pending. The parties then agreed to the trial court’s curative orders which rendered this appeal moot.

But Jones’s counsel refused to sign SCAC’s proposed stipulation to dismiss the appeal, arguing that SCAC was free to—and should—dismiss its own moot appeal. SCAC then concluded that Jones’s refusal to concede the merits of all its appellate arguments demonstrated the appeal was not moot.

In lieu of the stipulation to dismiss the appeal, we now have Jones’s motion to dismiss, accompanied by her motion for sanctions, both of which are opposed by SCAC. The parties have also fully briefed the case on the merits, with SCAC encouraging this court to address what it claims is “an issue of broad public interest.” Both sides have asked us to take judicial notice of documents which were not before the trial court at the time of the challenged ruling. All of this fuss regarding an order that both sides agree was overbroad as initially issued, and also agree has since been satisfactorily modified to correct that overbreadth. As we said, “much ado.”

We deny Jones’s motion to dismiss because—in a surprise twist worthy of the Bard himself—the appeal is not moot. Not for the reason suggested by SCAC, but because the trial court had no jurisdiction to stay or modify an order that was already pending on appeal. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189 [any proceeding “directly or indirectly seek[ing] to ‘enforce, vacate or modify [the] appealed judgment or order[ ]’” is subject to the automatic stay imposed by Code of Civil Procedure section 916]; Elsea v. Saberi (1992) 4 Cal.App.4th 625, 629 [“The trial court’s power to enforce, vacate or modify an appealed judgment or order is suspended while the appeal is pending”].)

Consequently, the trial court’s subsequent orders staying and then granting relief from the portion of the order allowing inspection of privileged documents were void. Having concluded the appeal is not moot, we likewise deny Jones’s motion for sanctions, which is based entirely on the assertion that the appeal is moot.

Because both sides also agree the trial court’s void orders would have satisfactorily addressed the overbreadth of the initial order appealed from, we need not delve further into the merits of that order. Instead, we remand the case to the trial court with specific directions to modify its order.

DISPOSITION

The order is reversed, and the case is remanded to the trial court with directions to modify its order in terms identical to those it earlier attempted to impose during the pendency of this appeal. The parties are to bear their own costs on appeal.

GOETHALS, J.

WE CONCUR:

ARONSON, ACTING P. J.

IKOLA, J.