Oiye v. Fox

CourtCalifornia Court of Appeals
Writing for the CourtRUSHING
Citation151 Cal.Rptr.3d 65,211 Cal.App.4th 1036
PartiesLauren OIYE, Plaintiff and Respondent, v. James Daniel FOX, Defendant and Appellant.
Decision Date11 December 2012

211 Cal.App.4th 1036
151 Cal.Rptr.3d 65

Lauren OIYE, Plaintiff and Respondent,
v.
James Daniel FOX, Defendant and Appellant.

Court of Appeal,
Sixth District, California.

H036065, H036308
Filed December 11, 2012



Santa Clara County Superior Court Superior Court No.: CV173255, The Honorable Mark H. Pierce.

Kass and Kass Law Offices, Bradley Kass, San Mateo, Attorneys for Defendant and Appellant James Daniel Fox.

Morgan, Franich, Fredkin & Marsh, William Siamas, Donn Waslif, San Jose, Attorneys for Plaintiff and Respondent Lauren Oiye.


RUSHING, P.J.
[211 Cal.App.4th 1044]I. Introduction

In April 2010, defendant James Fox filed no contest pleas to one felony count of lewd contact with a child under the age of 14 (count 2; Pen.Code, § 288, subd. (a)) and two felony counts of lewd touching of a child [211 Cal.App.4th 1045]who was 14 or 15 years old and 10 years younger than the defendant (counts 4, 7; Pen.Code, § 288, subd. (c)(1)). In May 2010, plaintiff Lauren Oiye filed this tort action alleging that she was defendant's victim, that he had repeatedly sexually molested her from the age of 12 through April 2009, when she was 21.

Defendant has filed two notices of appeal from pretrial orders. One is a preliminary injunction issued in July 2010 prohibiting defendant and his agents from concealing, encumbering, impairing the value, transferring, or disposing of any of defendant's assets except in the usual course of business or for the necessities of life. The court ordered plaintiff to post an undertaking of $1,000. The other is a September 2010 order sealing a declaration and its exhibits filed by defense counsel on June 25, 2010 in opposition to the request for a preliminary injunction. This court has ordered the two appeals considered together for purposes of oral argument and decision.1

On appeal, defendant contends that the trial court abused its discretion in granting the preliminary injunction. It should not have relied so heavily on his no contest pleas or plaintiff's “self-serving” declaration, and it should have accommodated his inability to respond without waiving his privilege against self-incrimination. He also contends that the low amount of the bond was an abuse of discretion and that the sealing order was not justified by either the plaintiff's showing or the court's factual findings. For the reasons stated below, we will affirm both orders, after finding that some of defendant's contentions are not reviewable, others have been

[151 Cal.Rptr.3d 73]

forfeited due to his failure to raise them in the trial court, and the remaining contentions are unpersuasive.

II. Proceedings

On May 27, 2010, plaintiff filed an unverified complaint predicating several causes of action on defendant's having sexually molested plaintiff from the age of 12 through the age of 21, for which he was convicted by no contest pleas in April 2010. The causes of action are entitled “childhood sexual abuse,” “sexual assault and battery,” “false imprisonment,” “negligent infliction of emotional distress”, “intentional infliction of emotional distress,” “negligence,” and “fraudulent transfer.” (Capitalization omitted.) The fraudulent transfer claim is that, after defendant was arrested on a warrant issued on [211 Cal.App.4th 1046]December 22, 2009, he transferred his Santa Clara residence on February 1, 2010 to the James D. Fox Trust for the purpose of hindering, delaying, or defrauding plaintiff.

On June 4, 2010, plaintiff filed a two-part motion, seeking (1) to enjoin defendant from concealing, transferring, encumbering, or disposing of any assets and interest in real and personal property and (2) to compel defendant to disclose to plaintiff financial statements and records revealing the fair market value of his assets from January 1, 2005 through the present. The motion was based on declarations by plaintiff and her attorney.

Plaintiff's declaration briefly recited that defendant had sexually molested her continuously beginning when she was 12 years old in 2000 through April 2009. As a result of this molestation, she has spent approximately 12 months as an inpatient in several medical facilities to treat her severe eating disorders, anxiety, and depression.

Plaintiff's attorney's declaration attached the minutes of a criminal case reflecting that defendant had pleaded no contest on or about April 22, 2010 to one felony count of lewd contact with a child under the age of 14 (count 2; Pen.Code, § 288, subd. (a)) and two felony counts of lewd touching of a child who was 14 or 15 years old and 10 years younger than the defendant (counts 4, 7; Pen.Code, § 288, subd. (c)(1)) for which he would be sentenced to six years in prison, with remaining charges to be dismissed. The declaration also attached a grant deed transferring defendant's interest in Santa Clara real property to defendant as trustee of the James D. Fox Qualified Personal Residence Trust. The attorney declared that this transfer occurred shortly after defendant was arrested on the criminal charges.

Defendant opposed both of these requests by a memorandum of points and authorities, a request for judicial notice, and a declaration by defense counsel filed on June 25, 2010. Attached to the declaration were three exhibits, an August 28, 2007 letter from PacifiCare Behavioral Health denying plaintiff authorization for certain medical treatment (Ex. A), an October 23, 2007 letter from Maximus Center for Health Dispute Resolution upholding the denial of reimbursement for medical services for plaintiff (Ex B), and a copy of plaintiff's 52–page personal diary (Ex. C) “believed to have been written by her while she was enrolled at the Oceanaire Residential Treatment [P]rogram in the summer of 2007.”

After argument at a hearing on July 8, 2010, by an order dated July 19, 2010, the court adopted its tentative ruling and (1) granted plaintiff a preliminary injunction prohibiting defendant and his agents from concealing, transferring, encumbering, or disposing of any assets and interest in real and [211 Cal.App.4th 1047]personal property except in the usual course of business or for the necessities of

[151 Cal.Rptr.3d 74]

life, and (2) also ordered defendant to provide plaintiff with all his financial statements that revealed the fair market value of his assets owned from January 1, 2005 through the date of the order. Over defendant's objection, the court required plaintiff to post an undertaking of $1,000. On September 20, 2010, defendant filed a notice of appeal from this order.

At the hearing on July 8, 2010, plaintiff's counsel asked that defendant's counsel withdraw his declaration insofar as it attached the plaintiff's private medical records. On September 24, 2010, plaintiff filed an ex parte application to seal defense counsel's declaration and its attachments. The application was essentially unopposed.2 After a hearing on September 28, 2010, on the same date the court entered an order sealing the declaration of defense counsel and attached exhibits and ordered defendant to refrain from filing additional medical or personal records of plaintiff without prior court approval. On November 29, 2010, defendant filed a notice of appeal from this order.

III. Standard of Review of Preliminary Injunction

On appeal, “[w]e review an order granting a preliminary injunction under an abuse of discretion standard. [Citations.] Review is confined, in other words, to a consideration whether the trial court abused its discretion in ‘ “evaluat[ing] two interrelated factors when deciding whether or not to issue a preliminary injunction. The first is the likelihood that the plaintiff will prevail on the merits at trial. The second is the interim harm that the plaintiff is likely to sustain if the injunction were denied as compared to the harm the defendant is likely to suffer if the preliminary injunction were issued.” ’ [Citation.]” (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1109, 60 Cal.Rptr.2d 277, 929 P.2d 596.)

“A trial court will be found to have abused its discretion only when it has ‘ “exceeded the bounds of reason or contravened the uncontradicted evidence.” ’ [Citations.] Further, the burden rests with the party challenging the injunction to make a clear showing of an abuse of discretion.” (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69, 196 Cal.Rptr. 715, 672 P.2d 121.)

Defendant contends that the injunction in this case merits heightened appellate scrutiny because it is a mandatory injunction. Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 43 Cal.Rptr.2d 774 stated at page 625, 43 Cal.Rptr.2d 774: “ ‘Where, as here, the preliminary injunction mandates an affirmative [211 Cal.App.4th 1048]act that changes the status quo, we scrutinize it even more closely for abuse of discretion. “The judicial resistance to injunctive relief increases when the attempt is made to compel the doing of affirmative acts. A preliminary mandatory injunction is rarely granted, and is subject to stricter review on appeal.” (Board of Supervisors v. McMahon (1990) 219 Cal.App.3d 286, 295, 268 Cal.Rptr. 219, fn. omitted.)”

“An injunction is a writ or order requiring a person to refrain from a particular act.” (Code Civ. Proc., § 525.) 3 “[T]he general rule is that an injunction is prohibitory if it requires a person to refrain from a particular act and mandatory if it compels performance of an affirmative act that changes the position of the parties.” ( Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 446, 60 Cal.Rptr.2d 641.) An injunction designed to

[151 Cal.Rptr.3d 75]

preserve the status quo as between the parties and to restrain illegal conduct is prohibitory, not mandatory, and does not require heightened appellate scrutiny. ( People v. iMERGENT, Inc. (2009) 170 Cal.App.4th 333, 342–343, 87 Cal.Rptr.3d 844.)

Defendant asserts that the court has affirmatively required him to “not transfer any assets other than for normal business and necessities of life.” This...

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3 practice notes
  • Veronese v. Lucasfilm Ltd.
    • United States
    • California Court of Appeals
    • December 28, 2012
    ...error analysis. When appellant presented a strong case in the trial proceeding, the court is more likely to conclude it is ‘reasonably [151 Cal.Rptr.3d 65]probable’ a result more favorable to appellant would have been reached without the error. [Citation.] (Eisenberg et al., Cal. Practice G......
  • Wallace v. GEICO Gen. Ins. Co., D061074
    • United States
    • California Court of Appeals
    • February 20, 2013
    ...the discovery order directing her to pay redaction costs. (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264-265; Oiye v. Fox (2012) 211 Cal.App.4th 1036,...
  • Southern v. Copeland, B255858
    • United States
    • California Court of Appeals
    • November 12, 2015
    .... 'to determine whether the facts satisfy the rule of law.'" (Id. at p. 1021; see Overstock.com at p. 491; see also Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1067 [following Jackson over Providian on this point].) Because Copeland challenges only the part of the order denying her request to ......
3 cases
  • Veronese v. Lucasfilm Ltd.
    • United States
    • California Court of Appeals
    • December 28, 2012
    ...error analysis. When appellant presented a strong case in the trial proceeding, the court is more likely to conclude it is ‘reasonably [151 Cal.Rptr.3d 65]probable’ a result more favorable to appellant would have been reached without the error. [Citation.] (Eisenberg et al., Cal. Practice G......
  • Wallace v. GEICO Gen. Ins. Co., D061074
    • United States
    • California Court of Appeals
    • February 20, 2013
    ...the discovery order directing her to pay redaction costs. (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264-265; Oiye v. Fox (2012) 211 Cal.App.4th 1036,...
  • Southern v. Copeland, B255858
    • United States
    • California Court of Appeals
    • November 12, 2015
    .... 'to determine whether the facts satisfy the rule of law.'" (Id. at p. 1021; see Overstock.com at p. 491; see also Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1067 [following Jackson over Providian on this point].) Because Copeland challenges only the part of the order denying her request to ......

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