SV - in response to our exchange on the last page - thanks for posting those quotes from Zalkin / news sources on the appeals decisions in this case. I didn't have a chance to respond earlier, but I think I've gotten to the bottom of it. The decisions by the California Appellate Court and the California Supreme Court were summary orders that refused to intervene, and did not substantively consider whether the judge was correct in issuing her discovery orders
The first indicator to me was the tone of Zalkin's own comments. He was somewhat vague about what these appeals courts did. Plaintiffs' lawyers are promoters. It's part of their job. If one of these higher courts not only said he was right, but explained WHY he was right, he would have spoken about it at every opportunity, including on the podcast.
I also ran an electronic database search today. Written opinions by state appeals and supreme courts are almost always available on an electronic legal database. Nothing there. The answer can be found in these dockets entries from the California Appellate Court, here and here.
On each, docket, you can see that on 3/27/14, there is an entry that says:
| The petition for writ of mandate, request for stay and real party's opposition to the stay have been read and considered by Justices Haller, McDonald and McIntyre. The petition is denied. |
Thus, a writ of mandate was denied through a summary order on the papers (e.g., they never had the lawyers in to court to argue it, and the panel of 3 appeals justices did not write an opinion explaining the reasons for their decision). Then, you can also see that on 5/21/14 (in the second docket link above) the CA Supreme Court denied a petition for review.
Just to briefly summarize, the writ of mandate is a sort of request for an emergency appeal, that is only granted in rare circumstances, regardless of whether there might be merit to the appeal. In most cases, judges will issue various orders along the way. However, the parties have to wait until the end of the entire case, after final judgment to appeal. Even if the judge is wrong, you have to abide by her orders along the way. The writ of mandate is a request for interlocutory appeal, meaning that a party believes they shouldn’t have to wait until final judgment to appeal, for example if an order involves turning over some document where irreparable harm would ensue by the very act of turning it over - the "bell can't be unrung" scenario.
That request was denied, evidently without explanation, by the appeals court. The docket would indicate if a formal opinion explaining the reasons was issued, but none is shown. The CA Supreme Court then refused to entertain an appeal of that decision. The end result for a party whose request for interlocutory appeal is denied, is that they have to comply with the order that they disagreed with. However, the denial does not necessarily mean that the party appealing was wrong; it could be that it just was not an appropriate time to appeal. The bigger question (to me) in this case is what happened between May, when the CA Supreme Court declined to hear the appeal, and last week, when judgment was entered. It’s not really possible to tell from the briefs, because the briefing on the sanctions motion was completed in April, when the writ of mandate petition had yet to be decided by the CA Supreme Court.
My editorial take on this is that Zalkin is engaging in a bit of puffery by implying that the intermediate appeal court and the CA Supreme Court have already ruled in his favor on these issues. That’s not necessarily a criticism; talking up his case and promoting how well he’s doing is part of his job. Don't get me wrong - it's an extremely egregious move to refuse to turn over documents that were ordered to be turned over, after exhausting avenues for appeal. Appeals courts will not look favorably upon that. However, it's somewhat of an overstatement to say that the appeals court and CA Supreme Court agreed with everything the trial judge did, when they never had the parties in for argument and never discussed the discovery issues in a formal opinion.
tl;dr version: the appeals courts entered orders that had the result of requiring the WTS and Losch to comply with the discovery orders, but those courts never found that the discovery orders involving document production and deposition testimony were actually correct.
