Steiner v. Superior Court of Santa Barbara Cnty.

• Decision Date: 26 November 2013
• Docket Number: 2d Civil No. B235347
• Citation: 164 Cal.Rptr.3d 155,220 Cal.App.4th 1479
• Court: California Court of Appeals Court of Appeals
• Parties: Christie STEINER et al., Petitioners, v. The SUPERIOR COURT of Santa Barbara County, Respondent; Volkswagen Group of America et al., Real Parties in Interest.

220 Cal.App.4th 1479

164 Cal.Rptr.3d 155

Christie STEINER et al., Petitioners,

v. The SUPERIOR COURT of Santa Barbara County, Respondent;Volkswagen Group of America et al., Real Parties in Interest.

2d Civil No. B235347

Court of Appeal, Second District, Division 6, California.

Filed October 30, 2013

As Modified on Denial of Rehearing November 26, 2013

Thomas Anderle, Judge, Superior Court County of Santa Barbara (Super. Ct. No. 1374169)

Farrise Firm, P.C., Simona A. Farrise, Carla V. Minnard; The Arkin Law Firm, Sharon J. Arkin for Petitioners.

No appearance for Respondent.

Herzfeld & Rubin, Craig L. Winterman, Los Angeles, Tara–Jane Flynn; Carroll, Burdick & McDonough LLP, Laurie J. Hepler, Nathaniel K. Fisher, San Francisco, for Real Party in Interest Volkswagen Group of America, Inc.

Yukevich Cavanaugh, Steven Douglas Smelser, Los Angeles, Dykema Gossett LLP, John M. Thomas, Palo Alto, for Real Party in Interest Ford Motor Co.

McKenna Long & Aldrige, Kelvin Timothy Wyles, Los Angeles, for Real Party in Interest Pneumo Abex.

PERREN, J.

An attorney's website advertised her success in two cases raising issues similar to those she was about to try here. The trial court admonished the jury not to “Google” the attorneys or to read any articles about the case or anyone involved in it. Concerned that a juror might ignore these admonitions, the court ordered the attorney to remove for duration of trial two pages from her website discussing the similar cases. We conclude this was an unlawful prior restraint on the attorney's free speech rights under the First Amendment. Whether analyzed under the strict scrutiny standard or the lesser standard for commercial speech, the order was more extensive than necessary to advance the competing public interest in assuring a fair trial. Juror admonitions and instructions, such as those given here, were the presumptively adequate means of addressing the threat of jury contamination in this case.

Although the order was improper, it is no longer in effect and thus no relief can be granted. We deny the petition for writ of mandate.¹

FACTS AND PROCEDURAL BACKGROUND

Richard and Christie Steiner filed this personal injury action after Richard Steiner contracted lung cancer. They alleged his cancer was caused by exposure to asbestos in friction automobile parts manufactured and distributed by Volkswagen Group of America (Volkswagen), Ford Motor Company (Ford) and others. After the jury was impaneled, Volkswagen moved for an order requiring the Steiners' attorney, Simona A. Farrise, to remove during trial two pages from her law firm website touting her recent successes against Ford in similar asbestos cases. The first page discussed a $1.6 million verdict against Ford and others, stating that “at least one jury managed to successfully navigate defendants' courtroom confusion and find these companies at fault.” The second page described a $4,355,987 jury verdict against Ford. Volkswagen asserted that “human nature being what it is, [Volkswagen], in the interests of a fair trial, believes that plainly provocative and prejudicial information should not intentionally be prominently displayed on the internet, by the parties or their counsel in this case during trial. That will obviously prejudice the jury process during the trial and deliberations in this case, if it is encountered by a juror.” Ford joined in the motion.

The Steiners argued that the request infringed upon counsel's constitutional right of free speech and that the more appropriate remedy was to admonish the jury not to search the Internet for information about the attorneys. The trial court, however, granted the motion at a hearing on August 22, 2011. After the parties expressed confusion over the scope of the order, the court clarified: “I had intended the decision here to be surgical. I was [not] directing [Ms. Farrise to] take down her whole website by any stretch of the imagination. It was the items that the Defense had pointed to that I was directing my thoughts to. [¶] Maybe I wasn't as clear as I should have been, but that's all. I wasn't asking you to do anything more than just take [down] the comments that the Defense pointed to in their motion, which was, I thought, very specific.”

The trial court admonished the jurors not to Google the attorneys. It also gave the standard admonishments prior to opening statements. Those admonishments are not part of the record, but at the time they were given, CACI No. 100 stated: “During the trial, do not read, listen to, or watch any news reports about this case.... This prohibition extends to the use of the Internet in any way, including reading any blog about the case or about anyone involved with it or using Internet maps or mapping programs or any other program or device to search for or to view any place discussed in the testimony.” ² (See CACI No. 100 (2011 ed.).)

The Steiners, Farrise and her law firm (collectively “petitioners”) sought a writ of mandate in this court seeking to reverse the trial court's order requiring Farrise “ to take down part of her firm's website during the pendency of the trial of this case in order to assure that the jurors do not view it.” (Italics in original.) The petition stated the trial court initially ordered Farrise to take down the entire firm website, but subsequently “modified its order and limited application of the order to the discussion of two verdicts [Farrise] had obtained in other actions....” We summarily denied the petition.

Thereafter, petitioners sought review of our denial in the California Supreme Court. In their petition for review, they changed the basis for their claim and represented to the Supreme Court that the trial court had ordered Farrise “ to take down her firm's entire website during the trial of this case in order to assure that the jurors do not view it.” (Italics in original.) The petition for review stated that “[e]ven if the order were limited to the website's discussion of other cases, it would be an unreasonable and unnecessary prior restraint and would violate [counsel's] free speech rights. But the order is not so limited: It requires that [counsel] take down her entire website, even with respect to speech wholly unrelated to any other asbestos litigation.” (Italics in original.) This claim contradicts the claim made to this court and is unsupported by the record. Five days later, the Supreme Court granted review and transferred the matter to this court with instructions to issue an order to show cause. We complied. We also asked petitioners to explain the discrepancies in the petitions regarding the scope of the trial court's order.

In response, petitioners concede that the trial court did not order Farrise to take down the entire website and that only the two pages specified in the motion were removed. They nonetheless assert the trial court's written ruling, issued the day after the court made its clarifying comments on the record, created an “ambiguity” in the scope of the order. That ruling, which was part of a length final pretrial conference order, stated: “Take it down for the time of the trial. The Court will make the same order with respect to any of the websites of the defendants upon request.” Petitioners claim the word “it” arguably referred to the entire website rather than the two pages referenced in the motion and identified by the trial court. The record reflects, however, that the court drafted the ruling shortly after explaining it “had intended the decision here to be surgical,” and was not “by any stretch of the imagination” directing removal of the entire website. It stated: “I'm going to print [the order], one copy - 20 pages.... You're going to get it out there, Monday, and I'm going to say that th[e] motion is granted. [¶] And Miss Farrise has a copy of it if she feels that she'd like to writ it, then it's clearly part of my record. [¶] Now, that part's done and behind me. I think that's being [as] surgical as I can be.”

On the day the petition for review was filed, the trial court issued a separate written order denying the Steiners' request to require defense counsel to take down portions of their websites. It explained “As I have said before, repeatedly, the Court is willing to surgically cut out any references in the websites of each side that could have a material effect on the outcome of this case; I do not find, in [the defense] websites any such offending material.” Two days later, Volkswagen's counsel sent an e-mail to petitioners' counsel advising that “[y]our petition to the California Supreme Court improperly reflects that Judge Anderle ordered you to take down your entire website. This clearly is contrary to Judge Anderle's order that was issued on August 22, 2011.” Citing counsel's ethical obligations, Volkswagen requested that petitioners “immediately advise the Supreme Court of [the] error.” They chose not to do so. ³

Farrise restored the two pages to her firm website when the trial ended in October 2011. Volkswagen moved to discharge the order to show cause as moot. We deferred resolution of the motion until the show cause hearing. ⁴

DISCUSSION

A. Public Interest Exception for Mootness

Appellate courts generally will neither decide controversies that are moot nor render decisions on abstract propositions. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541, 63 Cal.Rptr. 21, 432 P.2d 717; see also Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 78, 70 Cal.Rptr.3d 88.) “A case is moot when the decision of the reviewing court ‘can have no practical impact or provide the parties effectual relief. [Citation.]’ [Citation.] ‘When no effective relief can be granted, an appeal is moot and will be dismissed.’ [Citations.]” (MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214, 130 Cal.Rptr.2d 564 (MHC ).)

Petitioners concede the writ petition is moot, but contend this matter...