Monday, January 06, 2020

Dalessandro v. Mitchell (Cal. Ct. App. - Jan. 3, 2020)

Part of this opinion I totally get.  But there's a part of it I don't.

I definitely understand the issue surrounding the third footnote.  Brief background:  The case involves a discovery sanction -- a whopping $3,456.70 -- against a party's lawyer.  The lawyer and the client then file an appeal.

Respondent promptly files a motion to dismiss the appeal on the ground that the client has no standing to appeal a sanction order against the lawyer.  True enough.  But basically irrelevant since the lawyer also joined the appeal.  Or, as the Court of Appeal puts it:

"We first address Mitchell’s motion to dismiss Dalessandro from the appeal for lack of standing to challenge a sanctions order issued only against Levine. We agree Dalessandro lacks standing to appeal from the sanctions order. (Calhoun v. Vallejo City Unified School Dist. (1993) 20 Cal.App.4th 39, 42.) However, this does not render Levine’s appeal ineffective. (Moyal v. Lanphear (1989) 208 Cal.App.3d 491, 497.) There is no dispute Levine has standing to appeal the sanctions order and is properly an appellant in this matter. We therefore deny the motion to dismiss."

Which in turn prompts this footnote.  Which seems entirely appropriate, IMHO:

"We thus question Mitchell’s need to separately file a 12- page motion to dismiss, which spawned an opposition and a reply, on an issue that could have succinctly been addressed in the opening brief, possibly in a footnote. We make this observation to highlight the intensely litigated nature of this case, which does not advance the cause for either party. In addition to the motion to dismiss, Mitchell has filed a motion for sanctions seeking $12,500 to reimburse this court for the costs of processing a frivolous appeal and $8,500 to reimburse Mitchell for defending the appeal. (Cal. Rules of Court, rule 8.276.) The sanctions motion merely repeats the respondent’s brief arguments regarding the weaknesses and technical deficiencies of appellant’s briefs. This has led to a counter request for sanctions from appellants for filing frivolous motions. We find the parties are approaching frivolity, but have not yet crossed into that territory. With that caution, we deny all sanctions requests."

Yeah.  Total unrestrained craziness involving an appeal worth less than $3,500.  Sometimes parties can't restrain themselves.  And when, as here, that's the case, a little public shaming in a published opinion seems appropriate.  Particularly when, as here, extremely lightly done.

So all that makes sense.

Here's the part I don't totally understand.

The Court of Appeal decides that (1) the discovery sanction was appropriate, since (2) the motion to compel was rightly denied, because (3) the underlying discovery (a post-judgment demand) was improper since it was sent via U.S. mail without postage attached to the envelope.  I get this from page four of the opinion.  ("We conclude the trial court did not err in denying the motion to compel. The trial court found service of the demand to be ineffective because there was no postage affixed to the envelope containing it. [Cites] Mitchell was not required to respond to a demand that was not served.")

Okay, I get that.  If someone propounds discovery to me, and I never get it, obviously, I don't have to respond.

Except it seems from the opinion like the recipient of the discovery did receive it. 

I get that from footnote four of the opinion, which notes "Mitchell’s counsel’s written admission that he received the demand."  So I read the underlying briefs.  Which, trust me, are not models of clarity, in the slightest.  From the opinion and from the briefs, it seems like what happens is that there's no postage on the envelope, which gets mailed, but (as far as I can tell) the post office delivers the thing anyway.  (Which I'm familiar with; on rare occasions, I receive an envelope in the mail even though the stamp was inadvertently omitted.  Sometimes, I figure, the post office doesn't care about getting its 50 cents.  Or enforcement just slips through the cracks.)

I'm also thinking that's what may have transpired given the basis of the Court of Appeal's ruling.  Justice Bigelow says that since there was no postage, service was improper -- even if the document was in fact received -- since Section 684.120(a) requires “postage paid” when the service of postjudgment “writ, notice, order, or other paper” is by mail, and citing precedent that “strict compliance with statutory provisions for service by mail is required, and improper service will be given no effect.”  Hence, according to footnote four, even if the document was mailed (as established in the proof of service), and even if it was received, the Court of Appeal says that "the presumption was rebutted by evidence that the envelope had no postage on it, rendering service improper."

Yes, that's what the statute and precedent says.  And if the facts of this case are that someone mailed and envelope, and that envelope wasn't received by the recipient, then I agree it doesn't make proper service just because the recipient got the enclosed document some other way (e.g., by e-mail, or in a subsequent letter, etc.).  You've got to actually mail the thing and have it received.

But if it was mailed and was received, even though a stamp was left off of it, I'm not on board for a holding that says that it's still not proper service.  In that situation, the absence of a stamp did not matter.  AT ALL.  Which means it shouldn't matter to the propriety of service.  At all.

And as support for that point, I could cite a plethora of different provisions of the California Civil Code.  Section 3528 would be one of them.  "The law respects form less than substance."  Section 3510 would be another.  "When the reason of a rule ceases, so should the rule itself."  And Section 3533 would seem on point.  "The law disregards trifles."  Whether a 50 cent stamp was placed on an envelope, fell off, or was inadvertently omitted doesn't matter at all if the post office nonetheless delivers the thing.  The purpose of the law -- effective notice -- has been achieved.  The only party harmed is the post office, which is out fifty cents.  And they're not the ones complaining.

I admit I can conceive of a more difficult middle ground.  What if the stamp was omitted, the post office delivered the mail, but charged the recipient 55 cents (as they sometimes do) for the missing postage in order to deliver it?  Well, then, maybe you could find improper service, since this actually harmed the recipient, albeit merely to the tune of 55 cents.  Maybe that's a "trifle" or not; I can see arguments both ways.

But if it's just an envelope that gets delivered in the exact same way as properly-stamped mail, I see zero reason why that should not be proper service.  Ditto if the sender accidentally puts an old 48 cent stamp on the thing (instead of a "forever" or proper 55-cent stamp) and the envelope gets delivered as usual.  That's not "proper postage" attached either.  But service is still proper.

And I can think of a thousand other variations on Section 684.120(a) that should also constitute proper service notwithstanding the (overly) strict construction that the Court of Appeal might intend for the thing via this opinion.  For example, that section also expressly requires the documents to be in a "sealed envelope."  What if the sender forgot to seal the thing, and left it open, but the documents never slipped out, and were delivered as packaged?  Or what if there wasn't even an envelope, and the documents were instead shipped inside a box (or a burlap sack)?  Seems to me that's totally fine, yet an overly strict reading of the statute would make that improper too.

Or what if you messed up the address and put "Suite 200" on the envelope even though the lawyer's office was actually in Suite 2100, but the postal carrier (as is fairly common) knew full well that the addressee was in Suite 2100 and so delivered the envelope there?  Improper service since 684.120 expressly says the envelope has to be "properly addressed" and it wasn't, and we "strictly construe" service even when the deficiencies are totally irrelevant and harm utterly no one?  I think not.

So if the papers at issue here weren't actually received in the envelope that was sent, I think the Court of Appeal needs to say so, and to modify the opinion so it's clear that hypertechnical deficiencies that are of zero consequence won't negate service.  Or if, instead, that envelope was indeed delivered in the usual way, and was merely missing a stamp, well, then, that seems proper service to me (though unnecessarily risky), and I wouldn't want an opinion that holds otherwise.  If only because I'm quite confident that lawyers (or their assistants) sometimes accidentally leave off stamps, forget to lick an envelope, or make typos.  If that error makes a practical difference, than so be it.

But if it doesn't, then it shouldn't make a legal difference either.  Because the law respects substance and purpose and overlooks trifles.

Including but not limited to omitted 55 cent stamps that the post office doesn't bother to require.