Villa v. Cole

• Decision Date: 18 March 1992
• Docket Number: No. A053056,A053056
• Court: California Court of Appeals Court of Appeals
• Parties: Robert R. VILLA, Plaintiff and Appellant, v. Rufus L. COLE et al., Defendants and Respondents.

Page 644

6 Cal.Rptr.2d 644

4 Cal.App.4th 1327

Robert R. VILLA, Plaintiff and Appellant, v. Rufus L. COLE et al., Defendants and Respondents.

No. A053056.

Court of Appeal, First District, Division 3, California.

March 18, 1992.

Certified for Partial Publication ^*

Debra A. Hayes, Barbara M. Thomas, Hayes, Meyer and Mitchell, Hayward, for plaintiff and appellant.

Lorraine M. Walsh, Law Office of Walter S. Moeller, Oakland, for defendant and respondent Cole.

Edward M. Chen, Ann Brick, American Civ. Liberties Union Foundation of Northern California, Diana L. Lee, Annette L. Hurst, Howard, Rice, Nemerovski, Canady, Robertson & Falk, San Francisco, for defendant and respondent Seeterlin.

WHITE, Presiding Justice.

Robert R. Villa appeals from a judgment entered upon the granting of the motion for summary judgment of respondent Rufus L. Cole and Raymond A. Seeterlin, and from an order granting respondent Cole's motion to compel production of documents and imposition of sanctions. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

This lawsuit arose from an altercation between respondent Seeterlin and appellant Villa, a police officer employed by the City of Alameda (City), that occurred at the time of Villa's attempt to administer a field sobriety test to the driver of an automobile in which Seeterlin was a passenger. As a result of this altercation, Villa arrested Seeterlin for drunk and disorderly conduct (Pen.Code, § 647, subd. (f)).

The Underlying Seeterlin Lawsuit

Seeterlin retained respondent Cole, an attorney. In July 1987, Cole filed a lawsuit in Alameda County Superior Court on Seeterlin's behalf against the City, the Alameda Chief of Police, and two individual Alameda police officers, Officer James Alves and appellant Villa. The complaint alleged multiple causes of action against each of the defendants, including violation of civil rights, assault and battery, false arrest, and both intentional and negligent infliction of emotional distress. It sought general, compensatory and punitive damages, attorney fees and costs of suit, and an order directing the City to adopt an affirmative program of compliance with federal civil rights laws "in order to insure that all police officers for the [City] utilize the degree of force in their dealings with citizens which is consistent with and is not violative of the United States Constitution...."

Villa was sued both in his official capacity as an Alameda police officer and in his individual capacity. Together with the other defendants, he was represented by attorney R. Ashley Cohn, counsel for the City. The City bore all of the costs of Villa's representation.

In July 1988, Seeterlin's lawsuit was removed to the United States District Court for the Northern District of California, where it was assigned to Judge John P. Vukasin, Jr. In February 1990, respondent Cole sent Cohn a letter confirming an agreed schedule for depositions and discovery. Cole's letter also invited Cohn "to further discuss the possibility of settlement of this claim without the necessity of incurring further costs for discovery."

Settlement of the Underlying Lawsuit

In ensuing discussions and correspondence, Cole and Cohn discussed a proposed settlement under which Seeterlin would dismiss the action with prejudice in exchange for the City's waiver of its right to seek reimbursement for its litigation costs and attorney fees. On March 19, 1990, Cole wrote Cohn a letter reporting that Seeterlin had accepted Cohn's offer to waive costs of suit in exchange for Seeterlin's dismissal of his lawsuit. At the same time, Cole wrote a letter to Judge Vukasin reporting to the federal trial court that the "matter has been settled by the parties."

On March 21, 1990, Cohn advised Cole that "all of our clients have not agreed to the terms of the proposed settlement." The next day, Cole wrote Cohn that Seeterlin had accepted the City's proposed settlement with the understanding that it was acceptable to all of Cohn's clients. Cohn in turn wrote Judge Vukasin a letter reporting that "the proposed settlement is not complete as one of the defendant police officers has not agreed to accept a dismissal in exchange for a waiver of fees and costs," and requesting a settlement conference "at the earliest possible time."

Thereafter, the parties arranged for a settlement conference before Judge Vukasin. Prior to the conference, Cohn outlined the terms of the proposed settlement in a letter to Cole dated April 17, 1990, stating: "This will confirm our agreement that this case will be resolved under the following terms and conditions:

"You will request that the Court enter an Order of Dismissal which dismisses the entire action, with prejudice, against all defendants. In exchange, the City agrees to waive its right to litigation costs and attorneys' fees on behalf of itself and all City employee individual defendants." Cohn also submitted a settlement conference statement, arguing that the City had a right to settle the lawsuit on behalf of itself and Officer Villa despite the latter's disagreement, because the City had borne all the expense of Villa's indemnification and defense, and was arranging for the dismissal of the lawsuit with no actual or potential liability to Villa.

Present at the settlement conference on April 18, 1990, were Cohn and Alameda City Attorney Carol Korade for the defendants, individual police officer defendants Villa and Alves, and attorney Cole on behalf of Seeterlin. Cohn stated that he appeared "on behalf of all defendants." Villa did not dispute this statement. Judge Vukasin stated on the record that the City had provided representation for all of the defendants and had borne all of the costs of litigating on their behalf; that Seeterlin and the City had agreed on a settlement; and that "Officer Villa's position is that he does not join in this settlement agreement or in the motion to approve the settlement." Villa acknowledged this as "correct." Officer Alves stated that he accepted the City's position. Villa did not dispute Judge Vukasin's statement that the City had represented him and had carried the full costs of his defense; he did not offer to release the City from its obligation to indemnify and represent him; and he did not propose holding the City harmless in exchange for the City's agreement not to require Seeterlin to dismiss the action and all claims against Villa.

Judge Vukasin confirmed with attorneys Cohn and Cole "that the disposition is that the plaintiff [Seeterlin] will dismiss with prejudice, and the City, on behalf of the City and all defendants, is prepared to wa[i]ve costs and fees." After both attorneys accepted the settlement terms on behalf of their respective clients, Judge Vukasin ruled as follows: "The City has provided the representation for Officer Villa, the City has agreed as attorney for Officer Villa to this disposition, and the City takes the position that it has the right to settle on his behalf even though he does not join in the motion pursuant to Government Code [section 825, subdivision (a) ] of California.... [p] This is a motion to approve the disposition and dismissal of the action, and the motion is granted." Thereafter, the court entered its order dismissing Seeterlin's action with prejudice, pursuant to the stipulation "entered into by the parties by and through their counsel of record...."

The Instant Malicious Prosecution Lawsuit

Without taking any action to set aside the district court's order dismissing Seeterlin's lawsuit pursuant to the settlement, appellant Villa filed the present action against Seeterlin and Cole for malicious prosecution on June 11, 1990. Among other things, Villa's complaint alleged that he had "incurred costs and attorneys' fees in defending against [Seeterlin's] action," and it prayed for compensatory, special and punitive damages as well as attorney fees and costs. Seeterlin and Cole separately answered and filed motions for summary judgment, arguing that, as a matter of law, the settlement of the underlying action precluded Villa from establishing the favorable termination of that action in his favor.

In November 1990, Cole served his first set of interrogatories and request for production of documents on Villa. Both the responses to the interrogatories and the production of documents were due in mid-December 1990. Despite two time extensions and a warning that further delay would prompt Cole to file a request for sanctions, Villa had still not responded to either the interrogatories or the request for production of documents by mid-January 1991. On January 16, 1991, Cole filed a motion to compel production of documents and responses to interrogatories, and a request for sanctions. Villa's untimely opposition to this motion, dated January 30, 1991, was accompanied by incomplete answers to Cole's first set of interrogatories. Villa's opposition claimed that he had already produced all unprivileged documents not already in Cole's possession. In fact, no documents had been produced prior to this or were produced at this time.

Cole's motion to compel responses to interrogatories and production of documents and request for sanctions was heard on February 5, 1991. The motion to compel responses to interrogatories was denied as moot on the grounds that answers had been submitted with Villa's opposition; the motion to compel production of documents was granted; and the request for sanctions was granted, with sanctions set at $486. Compliance was ordered to take place no later than February 19, 1991. However, Villa still did not comply; he did not produce any documents or pay the sanctions as ordered.

Meanwhile, in late January 1991, Villa filed two written objections to statements made in the declarations submitted in support of the motions for summary judgment: an objection to the citation of an unpublished appellate decision; and a hearsay objection to statements by Cole to the effect that Cohn...