Trial Court: Santa Clara County Superior Court Superior Court No.: CV173255 Trial Judge: The Honorable Mark H. Pierce (Santa Clara County Super. Ct. No. CV173255)
The opinion of the court was delivered by: Rushing, P.J.
CERTIFIED FOR PUBLICATION
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 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.*fn1
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 forfeited due to his failure to raise them in the trial court, and the remaining contentions are unpersuasive.
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 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 personal property except in the usual course of business or for the necessities of 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.*fn2 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.)
"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.)
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 stated at page 625: " 'Where, as here, the preliminary injunction mandates an affirmative 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, fn. omitted.)"
"An injunction is a writ or order requiring a person to refrain from a particular act." (Code Civ. Proc., § 525.)*fn3 "[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.) An injunction designed to 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.)
Defendant asserts that the court has affirmatively required him to "not transfer any assets other than for normal business and necessities of life." This assertion is self-contradicting. We agree with plaintiff that the essence of this order, that defendant not encumber his assets or divest himself of them, is prohibitory. It directs affirmative inaction by defendant, not affirmative action.
Defendant also points to that part of the order that he affirmatively produce personal financial records. As plaintiff responds, this order was not granted as part of the preliminary injunction, but rather as early discovery in this case pursuant to section 2031.020, subdivision (b), and Civil Code section 3295, subdivision (c).*fn4 To the extent this mandates action by defendant, the order is not part of the preliminary injunction, but derives from separate statutory authority. It does not alter the prohibitory nature of the ruling on the injunction.
Defendant asserts that some of the trial court's remarks at the hearing about the no contest pleas and possible restitution indicate that the trial court evaluated the evidence improperly. On appeal, we review the correctness of the trial court's ruling, not its reasoning. (Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1451 (Whyte).) This principle is particularly applicable to rulings granting or denying preliminary injunctions. As this court explained in City of Los Altos v. Barnes (1992) 3 Cal.App.4th 1193, a hearing on a preliminary injunction is not " ' "a trial of a question of fact" ' " within the meaning of section 632, so no statement of decision is required, even on request. (Id. at p. 1198; cf. People v. Landlords Professional Services, Inc. (1986) 178 Cal.App.3d 68, 72.) Were we to review the court's oral statements, we would, in essence, compel the trial court to prepare a statement of decision explaining its ruling on injunctive relief. (Whyte, supra, 101 Cal.App.4th at p. 1451.) A trial court's oral statements may not be used to impeach its later decision. (Ibid.) So we will not consider the trial court's remarks.
"Whether the trial court granted or denied a preliminary injunction, the appellate court does not resolve conflicts in the evidence, reweigh the evidence, or assess the credibility of witnesses. [Citation.] ' "[T]he trial court is the judge of the credibility of the affidavits filed in support of the application for preliminary injunction and it is that court's province to resolve conflicts." ' [Citation.] Thus, even when presented by declaration, 'if the evidence on the application is in conflict, we must interpret the facts in the light most favorable to the prevailing party and indulge in all reasonable inferences in support of the trial court's order.' [Citation.]" (Whyte, supra, 101 Cal.App.4th 1443, 1450.)
IV. PLAINTIFF'S LIKELIHOOD OF PREVAILING ON THE MERITS
A. PLAINTIFF'S DECLARATION
Defendant repeatedly characterizes plaintiff's declaration that he molested her for years as "self-serving," as though that somehow reduces its worth.
"A self-serving declaration, of course, is an extra-judicial statement made by a person for his own benefit or in his own interests." (Weber v. Leuschner (1966) 240 Cal.App.2d 829, 840.)
2 McCormick, Evidence (6th ed. 2010) Hearsay, section 270 at page 248 states: "The notion that parties' out-of-court statements could not be evidence in their favor because of the 'self-serving' nature of the statements seems to have originated with the now universally discarded rule forbidding parties to testify. When this rule of disqualification for interest was abrogated by statute, any sweeping rule of inadmissibility regarding self-serving statements should have been regarded as abolished by implication. [¶] The hearsay rule excludes all hearsay statements unless they fall within some exception to the rule. Thus, no specific rule is necessary to exclude self-serving out-of-court statements if not within a hearsay exception. If a statement with a self-serving aspect falls within an exception to the hearsay rule, the judgment underlying the exception that the assurances of trustworthiness outweigh the dangers inherent in hearsay should be taken as controlling, and the declaration should be admitted despite its self-serving aspects." (Fns. omitted.)
Modern courts have recognized that all evidence proffered by a party is intended to be self-serving in the sense of supporting the party's position, and it cannot be discounted on that basis. (Jutzi v. County of Los Angeles (1987) 196 Cal.App.3d 637, 653, criticized on another ground by Zavala v. Board of Trustees (1993) 16 Cal.App.4th 1755, 1762; Gillette v. Workmen's Comp. Appeals Bd. (1971) 20 Cal.App.3d 312, 321; cf. Whitlow v. Durst (1942) 20 Cal.2d 523, 524 [declarations of a decedent's intent "are admissible in evidence as an exception to the hearsay rule, and it is immaterial that such declarations are self-serving"].)
In general, "declarations constitute hearsay and are inadmissible at trial, subject to specific statutory exceptions, unless the parties stipulate to the admission of the declarations or fail to enter a hearsay objection. (Evid. Code, § 1200; [citations].)" (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1354.) "The law provides specific exceptions to the general rule excluding hearsay evidence (see, e.g., Evid. Code, § 1220 et seq.), including those governing the admission of affidavits or declarations." (Id. at p. 1355.) One "statutory exception to the hearsay rule permits courts to rely upon affidavits in certain motion matters. (Code Civ. Proc, § 2009.)" (Ibid., fn. omitted.
Section 527, subdivision (a), provides in part: "A preliminary injunction may be granted at any time before judgment upon a verified complaint, or upon affidavits if the complaint in the one case, or the affidavits in the other, show satisfactorily that sufficient grounds exist therefor." A declaration under penalty of perjury has the same legal weight as an affidavit. (§ 2015.5.)
Plaintiff's declaration, though brief, was admissible at a motion hearing under an exception to the hearsay rule. It tended to establish that defendant repeatedly molested plaintiff sexually while she was a child and that this resulted in her obtaining medical treatment for anxiety, depression, and eating disorders. The credibility of this declaration was for the trial court to evaluate. By itself it provides substantial evidence that plaintiff is likely to prevail at trial if similar testimony is believed by the fact-finder.
B. SIGNIFICANCE OF DEFENDANT'S NO CONTEST PLEAS
Part of the evidence produced by plaintiff was that, in April 2010, defendant pleaded no contest 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)). Defendant correctly contends that this evidence alone is not conclusive of his conduct.
Teitelbaum Furs, Inc. v. Dominion Ins. Co. (1962) 58 Cal.2d 601 explained: "A plea of guilty is admissible in a subsequent civil action on the independent ground that it is an admission. It would not serve the policy underlying collateral estoppel, however, to make such a plea conclusive. 'The rule is based upon the sound public policy of limiting litigation by preventing a party who has had one fair trial on an issue from again drawing it into controversy.' [Citation.] 'This policy must be considered together with the policy that a party shall not be deprived of a fair adversary proceeding in which fully to present his case.' [Citation.] When a plea of guilty has been entered in the prior action, no issues have been 'drawn into controversy' by a 'full presentation' of the case. It may reflect only a compromise or a belief that paying a fine is more advantageous than litigation. Considerations of fairness to civil litigants and regard for the expeditious administration of criminal justice [citation] combine to prohibit the application of collateral estoppel against a party who, having pleaded guilty to a criminal charge, seeks for the first time to litigate his cause in a civil action." (Id. at pp. 605-606.)
Penal Code section 1016, subdivision 3 provides that pleas of no contest or nolo contendere to felony charges have the same effect as guilty pleas. "The legal effect of such a plea, to a crime punishable as a felony, shall be the same as that of a plea of guilty for all purposes. In cases other than those punishable as felonies, the plea and any admissions required by the court during any inquiry it makes as to the voluntariness of, and factual basis for, the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based."
"Because a felony guilty plea is admissible as a party admission in a subsequent civil action arising out of the same offense, so too is a felony nolo plea. The plea is not conclusive evidence; it is merely evidence against the party and the party may contest the truth of the matters admitted by his plea and explain why he entered the plea." (Rusheen v. Drews (2002) 99 Cal.App.4th 279, 284, fn. omitted.)
While defendant's no contest pleas are not conclusive, they are admissible as party admissions and, in the absence of an explanation for entering the pleas, they are highly corroborative of what defendant calls plaintiff's "unsupported self-serving statement in her declaration." Defendant's counsel's speculations about why a defendant might enter a no contest plea do not explain what ...