Appellant's Reply.pdf

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CA-F060737-AR.tif

CA F060737 AR

Code 128

Docket

F060737

Br ie f Type: Ap pe l lan t s

Reply

Box

:

978

Entered

3 21 2011 9:05:17

AM

y rhernandez

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LA

LIBRA


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IN

THE COURT OF APPEAL OF

THE

STATE

OF

CALIFORNIA

FIFTH

DISTRICT COURT

OF

APPEAL

CITY OF WOODLAKE, ET AL.,

Plaintiff/Respondent,

Case No.: F060737

v

TULARE COUNTY GRAND JURY,

Defendant/Appellant.

Tulare County

Superior

Court No. VCU237194

The Honorable Lloyd L. Hicks, Judge Presiding

APPELLANT S REPLY

BRIEF

PHILLIP J. CLINE

Tulare County

District Attorney

DON

H.

GALLIAN

Assistant District

Attorney

SHANI D.

JENKINS

Assistant Distric t

Attorney

BARBARAJ.GREAVER

Supervising Deputy District Attorney

JOHN F. SLINEY, SBN 219657

Deputy District

Attorney

221

S

Mooney Blvd., Room 224

Visalia,

CA

93921

559) 733-6411

Fax

559) 730-2658

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TABLE

OF CONTENTS

PAGE

TABLE OF AUTHORITIES . . . . . . . . . . .. .. . . . . .. .. . . . . .. . . . . . . . ... . .... 11

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENTS

I. THE ORDER IS APPEALABLE AS IT IS THE

FINAL DETERMINATION OF THE

RIGHTS

OF

THE PARTIES - 2

II. SECRECY

OF CIVIL

GRAND

JURY PROCEEDINGS

IS JUST

AS

SIGNIFICANT

AS

SECRECY

OF

CRIMINAL

GRAND JURY PROCEEDINGS .. . . . . . . .. . . .. . . . . . . . . . ... . . . . . . . . 5

III. THE LACK

OF

AN AFFIDAVIT DOES NOT LIMIT

RESPONDENT S RIGHT OR ABILITY TO OBJECT

TO

THE SUBPOENAS

13

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . 13

CERTIFICATE OR RULE 8.204(C)(l) COMPLIANCE

14

PROOF OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

15

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TABLE

OF AUTHORITIES

CASES PAGE

Douglas Oil

Co

v

Petrol Stops Northwest

1979) 441 U.S. 211... ... 6

Glasser v Municipal Court

ofCity of

Los Angeles

Los Angeles County

1938) 27 Cal.App.2d 455 .. ..... 4, 5

Irvine v Gibson

1941) 19 Cal.2d 14 .. .. .. .. . .. .. .. .. .. .. .. .. .. .. .. .. ..

..

4

MB

v

Superior Court

2002)

103

Cal.App.4th 1384 . .. .. .. .. .. .. .....

1

2, 7

McClatchy Newspapers

v

Superior Court

1988) 44 Cal.3d

1162

2, 5, 6, 7

People ex

rel

Smith

v

Olds

1853) 3 Cal. 167 . .. .. .. .. .. .. .. .. .. .. .. .. 4

Phelan

v

Superior Court

in and

or City

and

County

ofSan Francisco

1950) 35 Cal.2d 363 .. .. 4

State

of

California ex ref. Department ofPesticide Regulation

v

Pet Food Express Limited

2008) 165 Cal.App.4th 841 .. .... . 2, 3, 4,

United States

v

Sells Engineering Inc.

1983) 463 U.S. 418 6

STATUTES PAGE

Code

of

Civil Procedure § 577 .... .. .. .. .. . .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 3

Code ofCivil Procedure § 904.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Pen. Code § 888 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Pen. Code § 904.5

..

. . .

.

. . . . . . . . . . . . . . . . . .

.

. . . . . . . . . . . . . . . . . . . . . . . . .... . . . . . . 1

Pen.

Code§

917 1

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N THE COURT OF PPE L OF THE ST TE OF C LIFORNI

FIFTH DISTRICT COURT OF PPE L

CITY OF WOODLAKE, ET AL.,

Plaintiff/Respondent,

v

TULARE COUNTY GRAND JURY,

Defendant/Appellant.

INTRODUCTION

Case No.: F060737

Tulare County

Su_perior

Court Case VCU23 7194

Appellant submits this reply brief responding to arguments

respondent raises in its brief which require additional discussion. This brief

does not respond to issues that appellant believes were adequately discussed

in its opening brief, and appellant intends no waiver of those arguments by

not expressly reiterating them here.

Respondent contends the superior court's order was not a final

adjudication between the parties; that no final ruling or dismissal had taken .

place . (Respondent's Briefp 3, 5; hereafter RB 3, 5.) He is wrong. The

court heard the consolidated cases as a motion to quash and its June 3, 2010

ruling was its final ruling. (CT 89-93.)

Respondent also contends that the holding

ofMB v Superior ourt

(2002) 103 Cal.App.4th 1384, 1393-1396 does not apply to civil grand juries

because the civil grand jury merely issues a report and cannot indict. (RB ·

610.) Again respondent is wrong. Pursuant to Penal

Code§

I i

a grand

jury, civil or criminal, may return an indictment where appropriate. While

1

All further references to statutory code sections refer to Penal Code

sections unless otherwise specified.

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parties as no final ruling or dismissal

of

the action has taken place. (RB 2-

5.) This contention lacks merit.

On April20, 2010, appellant filed its Ex Parte Application for an

Order to Show Cause Re: Sanctions and/or an Order to Produce Documents,

Case#

VCU237228. (CT 122-128.) On April16, 2010, respondent filed its

Petition for Writ

of

Mandate and Complaint for Declaratory Relief, Case #

VCU237194. As the superior court's June

3

2010 order shows, the two

cases were consolidated. (CT 89.) The parties stipulated that respondent 's

Petition for Writ

of

Mandate and Complaint for Declaratory Relief would be

treated as a motion to quash the subpoenas. (CT 89.) The June 3 2010

ruling was the final ruling on both the motion to quash and the request for an

order to show cause. (CT 89-93.) It was the final determination

of

all the

rights of the parties. (CT 89-93.) The ruling left nothing for further

determination except the fact

of

compliance or noncompliance with its

terms. (CT 89-93.) A judgment is the final determination

ofthe

rights of

the parties in an action or proceeding. (Code Civ. Proc. § 577.) Thus, the

June 3 2010 ruling was a final judgment.

In

State

o

California ex

rei

Department

o

Pesticide Regulation

v

Pet Food Express Limited, supra, 165 Cal.App.4th at p. 849-853 the court

ruled that a superior court order enforcing an administrative subpoena was

appealable pursuant to Code of Civil Procedure § 904.1, subdivision (a) as a

final judgment

as

it determined all

of

the parties' rights and liabilities at

issue in the proceeding. ( d. at p. 851.) Here, the superior court's June 3,

2010 order also determined all the parties' rights and liabilities. As such, the

June

3

2010 order is a final judgment appealable pursuant to Code

of

Civil

Procedure§ 904.1, subdivision (a).

Respondent contends that since in this case the superior court quashed

the subpoena

as

opposed to denying the motion to quash the order

is

not

appealable. (RB 3.) This is a distinction without significance. Respondent

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offers no reason why how the superior court ruled on the motion to quash

should affect the appealability

of

the ruling. Regardless

of

whether the

motion to quash was denied or granted, its ruling

is

still a final determination

of

the rights

of

the parties and,

as

such,

is

an appealable order.

Respondent also insists that appellant's remedy to this order was not

an appeal, but rather to issue the subpoena in compliance with the order.

(RB 3.) This overlooks the obvious, that this is no remedy at all.

Compliance with the order would render moot any attempt to contest the

order. Also, the court in State

of

California ex

rel

Department ofPesticide

Regulation v Pet Food Express Limited, supra, 165 Cal.App.4th at p. 851

noted that a

ruling

on the enforcement

of

a subpoena was a final

determination

of

the rights of the parties because the only determination left

was the question

of

future compliance, which

is

present in every judgment.

As such, the court found the ruling could be appealed pursuant

to

Code

of

Civil Procedure § 904.1, subdivision (a). Thus, here also, compliance with

the order was not a necessary step to perfect appellate rights.

In

an

alternative argument, respondent contends that appellant 's

· remedy was to seek a writ from this court, not an appeal. (RB 3.) Again,

respondent

is

mistaken [I]t has long been established as a general rule that

the writ will not be issued

if

another such remedy was available to the

petitioner. Phelan v Superior Court

in

and for City nd County ofSan

Francisco (1950) 35 Cal.2d 363, 366 [217 P.2d 951, 953], citing Irvine

v

Gibson (1941) 19 Cal.2d 14, 118 [P.2d 812] People ex rel. Smith v Olds

(1853) 3 Cal.

167

[58 Am.Dec. 398].)

An

appeal is the usual course open

to a litigant who believes that the trial court has committed error.

Phelan

v

Superior Court

in

nd or City and County

of

San Francisco, supra, 35

Cal.2d at p. 366.) In fact, writ relief is not available whete there is an

adequate remedy by appeal. Glasser

v

Municipal Court

of

City ofLos

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Angeles, Los Angeles County (1938) 27 Cal.App.2d 455, 457-58 [81 P.2d

260, 261-62].)

t is a principle of universal application, and one which lies at

the very foundation

of

the law

of

prohibition, that jurisdiction

to issue the writ is strictly confined to cases where there is no

plain, speedy, and adequate remedy in the ordinary course of

law. So although an inferior tribunal is proceeding in excess

of jurisdiction, the writ is not available

if

there is a remedy by

appeal or supersedeas, and such remedy is adequate.

( d.)

As

noted above, the order here is a final determination of the rights

of

the parties and, therefore, there is a remedy of appeal. As there is a remedy

of appeal, the appeal is the proper method of seeking review of the superior

court's order, not a writ

of

mandate or prohibition.

II

SECRECY OF

CIVIL GR ND JURY PROCEEDINGS

IS JUST AS SIGNIFIC NT AS SECRECY OF CRIMIN L

GRAND

JURY

PROCEEDINGS

Respondent contends the civil grand jury is limited to performing

only its watchdog functions and making recommendations in a report. (RB

6.) Respondent concludes that this limited function undercuts the basis for

any alleged confidentiality. (RB 6.) The contention that the civil grand

jury has limited authority is without basis. (McClatchy Newspapers et

al.

v.

Superior Court, supra,

44 Cal.3d at p. 1175.) Additionally, even if this were

true it would not affect the necessity for grand jury secrecy as grand jury

secrecy is just as important when a grand jury is conducting its watchdog

function

as

when it is considering whether or not to return an indictment.

( d. at p. 1173-1176.)

A number

of

interests are served by the strong historic policy

of preserving grand jury secrecy. [Citation.] As described by

the United States Supreme Court, these are: First,

if

preindictment proceedings were made public, 'many

prospective witnesses would be hesitant to come forward

voluntarily, knowing that those against whom they testify

would be aware of that testimony. Moreover, witnesses who

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appeared before the grand jury would be less likely to testify

fully and frankly, as they would be open to retribution as well

as to inducements. There would also be the risk that those

about to be indicted would flee, or would try to influence

individual grand jurors to vote against indictment. Finally, by

preserving the secrecy

of

the proceedings, we assure that

persons who are accused but exonerated by the grand jury will

not be held up to public ridicule. [Citations]

( d. at p. 1174-1175, quoting United States v Sells Engineering, Inc. (1983)

463 U.S. 418,428 [77 L Ed. 2d 743, 755, 103

S

Ct. 3133] Douglas Oil

Co v Petrol Stops Northwest (1979) 441 U.S. 211, 219 [60

L.

Ed. 2d 156,

165].)

The importance

of

secrecy

is

well established in the context

of

the grand jury's criminal indictment function.

By the same

token, when the grand

jury

conducts a watchdog investigation

o local government operations as in the instant case, secrecy

appears equally vital.

Compared with indictment proceedings,

the efficacy and credibility

of

watchdog investigations no less

require that witnesses testify without fear of reproach by their

peers or their superiors. Though the watchdog investigation

and report serve a different social purpose than the criminal

indictment, eliciting candid testimony is obviously critical to

both functions

of

the grand jury.

( d.

at 1175, emphasis added.) Thus, respondent's contention that because

the grand jury was performing its watchdog function it undercuts the need

for confidentiality is without merit and contrary to California Supreme Court

precedent.

Additionally, respondent's contention

is

based on the faulty premise

that the civil grand jury has limited authority. (RB 6.) Nothing limits the

civil grand jury s authority to return indictments. While the civil grand jury

is required by § 888 to investigate or inquire into county matters of civil

concern, this merely expands the civil grand jury s responsibilities.

It

does

not limit it. Moreover, even when the civil grand jury is conducting inq'uiry

into matters

of

civil concern, it is not prohibited from returning an

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indictment pursuant to § 917. As the California Supreme Court noted in

McClatchy Newspapers et al.

v

Superior Court supra 44 Cal.3d at p. 1175:

Significantly, the separate and distinct functions

of

watchdog

and indictment grand juries are sometimes intermingled, in the

sense that watchdog inquiries into alleged corruption may

involve the weighing of possible criminal indictments against

county officials and others being investigated.

Thus, respondent's contention that the civil grand jury s powers are limited

is without basis. (See RB

5-6.)

As this faulty contention is the basis for

respondent's argument that the holding in MB v Superior Court supra

103

Cal.App.4th at 1393-1396 does not apply to civil grand juries, the

argument should be rejected for this reason

as

well.

III

THE LACK OF AN AFFIDAVIT DOES NOT LIMIT

RESPONDENT S RIGHT OR ABILITY TO OBJECT

TO THE SUBPOENAS

Respondent contends that public policy requires a good faith affidavit

with the subpoenas

as

it would alert a government agency

as

to whether

exempt or non-exempt items were being sought and,

if

necessary, allow for a

challenge to the subpoena . . . . (RB 8.) As the subpoenas in this case show,

where the subpoena duces tecum is served without an affidavit, the subpoena

itself must identify the items sought. (CT 116.) Obviously this would be

necessary for production of the documents. This would allow the party to

whom the subpoena is directed to make any objections to disclosure of the

documents before disclosing them.

The subpoena duces tecum at issue in this case identified the

documents with sufficient specificity. (CT 116.) In fact, this specificity

allows respondent to identify potential objections

in

its brief. Thus, the

subpoena was sufficiently specific that respondent could have raised these

issues in the trial court

if

it had desired. As such, respondent's argument that

the affidavit is needed for governmental agencies to identify whether exempt

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or non-exempt items were being sought to allow for a challenge to the

subpoena when necessary is also without merit.

ON LUSION

For the foregoing reasons and the reasons stated in appellant s

opening brief, the superior court erred when it quashed the grand

jury s

subpoena duces tecum. This court should remand the case to the superior

court with directions to reinstate the subpoena duces tecum and deny the

motion to quash.

Dated: February 22, 2011

mitted,

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CERTIFICATE OF RULE 8.204 c) l) COMPLIANCE

Case: City of Woodlake v Tulare County Grand Jury

Fifth Appellate District Case : F060737

Tulare County Case : VCU237194

I certify pursuant to California Rule of Court 8.204(c)(l), that I used

Microsoft Word s word counting feature and Appellant s Reply

Brief

contains 2,306 words.

JOHN F. SLINEY

DEPUTY DISTRIC ATTORNEY

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PROOF OF SERVICE

CCP 1013a 3)

FRCP S b)

STATE OF CALIFORNIA, COUNTY OF TULARE

I am employed

in

the County of Tulare. I am over the age of eighteen and not a party to the within

action; my business address

is 221

So. Mooney, Room 224, Visalia, California, 93291. I served the

document described

as

Appellant's Reply Brief, Case F060737 City of Woodlake v Tulare

County Grand Jury, by placing the true copies thereof enclosed

in

sealed envelopes addressed

as

stated on the attached mailing list; by placing_ the originalX a true copy thereof enclosed in

sealed envelopes addressed

as

follows:

Tulare County

Superior Court

Hon. Lloyd Hicks

County Civic Center

221 S Mooney Blvd.

Visalia, Ca 93291

_x_

BY MAIL

_ (BY PERSONAL SERVICE)

_ (BY TELECOPIER)

Thomas T Watson

Supreme

Court of California

Fike Watson

350 McAllister Street

401 Clovis A venue, Suite 208

San Francisco, CA 94

I 02-4 797

Clovis, CA 93612

(Attorney for Plaintiff and

Respondent)

I deposited such envelope in the mail at Visalia, California.

The envelope was mailed with postage thereon fully prepaid.

_x_ As follows: I am readily familiar with the firm's practice

of

collection and procession correspondence for mailing. Under

that practice it would be deposited with U.S. Postal service on

that same day with postage thereon fully prepaid at Visalia,

California in the ordinary course of business.

_x_ I deposited such envelope in the Inter-Office mail at Visalia, CA.

(To Tulare County Superior Court)

I caused such envelope to be delivered by hand to the offices of

addressee.

I caused the above-referenced document to be delivered by

telecopier to the addressee.

_ (BY OVERNIGHT COURIER)

I caused the above-referenced envelope(s) to be delivered to an

overnight courier service for delivery.

_x_ (State)

_ (Federal)

I declare under penalty of perjury under the laws of the State

of

California that the above is true and correct.

I declare that I am employed

in

the office of a member of the bar

of this Court at whose direction the service was made.

Executed on February_,2011 at Visalia, California:

John F Sliney

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