California Court of Appeals, Second District, Sixth Division
Order File Date November 26, 2013
Superior Court of Santa Barbara County, No. 1374169 Thomas Anderle, Judge
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, Tara-Jane Flynn; Carroll, Burdick & McDonough LLP, Laurie J. Hepler, Nathaniel K. Fisher for Real Party in Interest Volkswagen Group of America, Inc.
Yukevich Cavanaugh, Steven Douglas Smelser, Dykema Gossett LLP, John M. Thomas for Real Party in Interest Ford Motor Co.
McKenna Long & Aldrige, Kelvin Timothy Wyles for Real Party in Interest Pneumo Abex.
It is ordered that the opinion filed herein on October 30, 2013, be modified as follows:
1. On page 4, second sentence, delete "A few" and replace with Five.
2. On page 4, delete first full paragraph, and add the following paragraphs:
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 lengthy 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. At the end of the above new paragraphs, insert footnote 3 which remains the same.
[There is no change in the judgment.]
Petitioners' petition for rehearing is denied.