Perez v. Backflip Software CA6 ( 2014 )

Filed 6/24/14 Perez v. Backflip Software CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
GIL PEREZ, H038426
(Santa Clara County
Plaintiff, Cross-Defendant and Super. Ct. No. 1-11 CV207075)
Appellant,
v.
BACKFLIP SOFTWARE, INC.,
Defendant and Respondent;
CARR & FERRELL LLP,
Objectors and Appellants.
This is an appeal of an order of monetary sanctions against appellant Gil Perez and
his attorneys Stuart Clark, and Carr and Ferrell LLP, for discovery violations in the
underlying breach of contract action against respondent Backflip Software, Inc.
(Backflip).1
STATEMENT OF THE CASE
The initial complaint in this case was filed by Perez and two other former
employees of Backflip on August 12, 2011, alleging breach of contract for failure to pay
their salaries for 13 and a half months. Backflip filed a cross-complaint against Perez on
1
Backflip did not file a response brief in this appeal.
October 28, 2011, alleging a number of causes of action against Perez including
negligence and breach of fiduciary duty.
During the course of litigation of this matter, both parties filed motions to compel
discovery against each other. The court heard both motions on the same day, and denied
Perez’ motion as moot, because Backflip had provided the requested discovery by the
time of the hearing on the motion. The court granted Backflip’s motion to compel.
As a result of the two motions to compel, the court ordered monetary sanctions
against Perez, and his counsel in the amount of $5,350. The court ordered Backflip to
pay $5,320 in sanctions.2
Perez filed a timely notice of appeal on June 15, 2012.
Following the filing of his opening brief, Perez notified the court that the parties
had settled the underlying case, and requested a dismissal of the appeal as to him. The
parties included a mutual release as a term of the settlement agreement, resulting in the
parties and Perez’ counsel not being obligated to pay the sanctions award that is the
subject of this appeal.
Subsequently, we dismissed the appeal as to Perez on April 29, 2013.
Presently, the appeal remains as to the sanctions award against Perez’ counsel.
DISCUSSION
On appeal, Perez’ counsel assert that despite the fact that they are no longer
obligated to pay the monetary sanctions ordered by the trial court, the appeal is not moot,
because the implied finding that they engaged in sanctionable conduct remains in place.
Alternatively, Perez’ counsel argue that even if the appeal is considered moot, this court
should exercise discretion to decide the issue because it is capable of repetition, yet tends
to evade review. (Mercury Interactive Corp. v. Klein (2007) 158 Cal. App. 4th 60, 78.)
2
Backflip filed a notice of appeal as to this order in June 2012. This court
dismissed the appeal for failure to file an opening brief (H038480).
2
To determine whether the appeal is moot we apply well established rules. The
duty of the court “ ‘ “is to decide actual controversies by a judgment which can be carried
into effect, and not to give opinions upon moot questions or abstract propositions, or to
declare principles or rules of law which cannot effect the matter in the case before it.” ’
[Citation.]” (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67
Cal. 2d 536, 541.) Accordingly, “ ‘[w]hen no effective relief can be granted, an appeal is
moot and will be dismissed.’ [Citations.]” (MHC Operating Limited Partnership v. City
of San Jose (2003) 106 Cal. App. 4th 204, 213.) Here, because the obligation to pay
sanctions was terminated by the settlement agreement, there is no effective relief that be
granted through this appeal. As a result, the appeal is moot.
Moreover, we decline Perez’ counsel’s request to review the issue on the merits.
Here, the discretionary order of discovery sanctions against counsel in the trial court is
neither important for the purpose of appellate review, nor capable of repetition yet
tending to evade review. (Mercury Interactive Corp., supra, 158 Cal.App.4th at p. 78.)
DISPOSITION
The appeal is dismissed as moot.
______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
PREMO, J.
____________________________________
ELIA, J.
3