Ignat v. Yum! Brands Inc

• Decision Date: 01 March 2011
• Docket Number: No. 30-2008-00114748,G043098,30-2008-00114748
• Court: California Court of Appeals Court of Appeals
• Parties: MELISSA IGNAT, Plaintiff and Appellant, v. YUM! BRANDS, INC., et al., Defendants and Respondents.

MELISSA IGNAT, Plaintiff and Appellant,

v.YUM! BRANDS, INC., et al., Defendants and Respondents.

G043098

No. 30-2008-00114748

COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Filed: March 1, 2011

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

Appeal from a judgment of the Superior Court of Orange County, Kirk H. Nakamura, Judge. Reversed and remanded with instructions.

John Elson for Plaintiff and Appellant.

Steptoe & Johnson and Katessa Charles Davis for Defendants and Respondents.

INTRODUCTION

Melissa Ignat appeals from a summary judgment granted to respondents Yum! Brands and Mary Shipma on her complaint for common-law invasion of privacy.

Ignat alleged that Shipma, who was her supervisor at work, unnecessarily revealed to her coworkers that Ignat was bipolar, causing the other workers to ostracize her.

After Yum! Brands and Shipma moved for summary judgment, Ignat's counsel served the opposition papers one day late, on a Friday, and filed the opposition with the trial court on the following Monday. The court refused to consider the opposition and granted summary judgment on the moving papers. The court subsequently denied Ignat's request for relief under Code of Civil Procedure section 473.

We reverse the grant of summary judgment. The California Supreme Court has clearly stated-as have the Courts of Appeal-that imposing what is in effect a terminating sanction for violating a procedural rule is an abuse of discretion, absent compelling circumstances, which do not appear in this record. The trial court must consider the motion on its merits, including Ignat's opposition.¹ We therefore do not reach the issue of relief under Code of Civil Procedure section 473.

FACTS

Yum! Brands is the corporate parent of several fast food franchises, such as Taco Bell, Pizza Hut, and KFC (formerly known as Kentucky Fried Chicken). Yum employed Ignat between 2005 and 2008 in the Yum Real Estate Title Department, located in Irvine.² She assisted paralegals in the department with securing title to the real estate on which Yum's franchised stores conducted business.

Ignat suffered from bipolar disorder, for which she was being treated with medications. Sometimes these worked; sometimes they did not work so well. When Ignat was having bad side effects or the medications were being adjusted, she would have to be absent from work.

After returning from one such absence in mid-2008, Ignat alleged, Shipma told her that Shipma had informed everyone in Ignat's department that Ignat was bipolar. Ignat alleged that her coworkers subsequently avoided and shunned her, and one of them asked Shipma if Ignat was likely to "go postal" at work.

Ignat was terminated in early September 2008. She filed suit against Yum! Brands and Shipma on November 12, 2008, alleging one cause of action for common-law invasion of privacy.

The defendants moved for summary judgment on July 30, 2009. Ignat's opposition was due on October 1, a Thursday. Her counsel, who is based in Northern California, was in trial in Monterey during the previous week. He had the opposition papers prepared for the October 1 filing, except for the separate statement. He was unable, however, to format the separate statement on his computer.³ After struggling with it for awhile over the weekend before the papers were due, he was forced to give up, because of his trial. He was finally able to conquer the computer, and he served everything but the exhibits on opposing counsel by e-mail on October 2. He also sent the entire package for Saturday delivery by Federal Express.⁴ He filed the papers with the court on Monday, October 5.⁵ The reply papers were served on October 9, 2009. The hearing on this motion took place on October 15.

The trial court refused to consider either Ignat's opposition papers or the substance of defendants' reply. It granted summary judgment to defendants on October 15, 2009. A subsequent motion for relief for the late filing under Code of Civil Procedure section 473 was also denied. This timely appeal followed.

DISCUSSION

Although trial courts have discretion to refuse to consider late papers (Cal. Rules of Court, rule 3.1300, subd. (d)), this discretion must be exercised with attention to the strong public policy in favor of deciding controversies on their merits. As the California Supreme Court stated, "Terminating sanctions such as an order granting summary judgment based on procedural error '"have been held to be an abuse of discretion unless the party's violation of the procedural rule was willful [citations] or, if not willful, at least preceded by a history of abuse of pretrial procedures, or a showing [that] less severe sanctions would not produce compliance with the procedural rule. [Citations.]"'" (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1364, fn. 16, quoting Parkview Villas Assn., Inc., v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1215; see also Security Pacific Nat. Bank v. Bradley (1992) 4 Cal.App.4th 89, 97 [summary judgment on procedural grounds is windfall for moving party].)

In this case, Ignat's counsel explained that he had the opposition papers ready except for the separate statement and that he could not get the formatting required for opposition separate statements to work on his computer. Being in trial, he eventually had to give up and return to it later. He served the finalized papers at the end of the day on Friday and filed the complete package with the court on the following Monday. There was no evidence in the record of a willful violation or of a history of procedural abuse that would justify terminating sanctions.

Opposing counsel argued vigorously that the late filing prejudiced her, because she lacked the time and resources to draft an appropriate reply. Respondents were nonetheless able to file a reply, objections to evidence, a supplemental declarationby counsel with more evidence, and approximately 400 pages of additional exhibits. What additional or different materials would have been filed had there been more time or resources was not explained.

The trial court spoke at some length about the burdens late filings place upon judges and their staff.⁶ This is undoubtedly true as a general proposition. Most trial courts, however, do not begin to work up a summary judgment or adjudication motion until they have all the papers, including the reply, if only because cases sometimes settle after one party has seen the handwriting on the wall. Ignat's tardy opposition could not have added to the court's burdens in this case unless it was the court's practice to begin working on these motions before briefing is complete. The reply brief was filed seven days before the hearing, giving the court its statutory time to review the entire motion.

Ignat filed additional evidence after the briefing was closed. Neither Code of Civil Procedure section 437c nor the Rules of Court in general allow for any filings after the reply, and obviously additional filings interrupt the court's ability to absorb what is already before it. We therefore do not require the trial court to consider those documents, although it may if it wishes.

We sympathize with the trial court's frustration at the lack of "consideration for the court" exhibited by both sides in this case, in their failure to follow well known rules of practice. They have exhibited it to us as well. We have been engulfed by unnecessary paper. Ignat filed an eight-volume appendix, fully half of which consisted of discovery-related pleadings that we were not asked to review and as to which no issue was identified. They were totally useless. Respondents contributed a two-volume appendix of court documents-quite a few of which were also to be found in the eight-volume behemoth prepared by appellant-including more discovery pleadings.

"An appendix must not: [¶] (A) [c]ontain documents or portions of documents filed in superior court that are unnecessary for proper consideration of the issues." (...