R Scott Turicchi et al vs Randy Quaid et al
R Scott Turicchi et al vs Randy Quaid et al
Case Number
19CV06268
Case Type
Hearing Date / Time
Mon, 09/09/2024 - 10:00
Nature of Proceedings
Motion: Compel Compliance with Subpoena; Motion: Strike
Tentative Ruling
R. Scott Turicchi, et al., v. Randy Quaid, et al.
Case No. 19CV06268
Hearing Date: 8/26/2024
HEARINGS: (1) Quaid motion to compel Turicchi compliance with subpoena
(2) Quaid motion to strike references to July 28, 2024 ruling
ATTORNEYS: Craig S. Granet / Claire K. Mitchell of RIMON, P.C. and Andrew W. Zepeda of Lurie, Zepeda, Schmalz, Hogan & Martin for plaintiffs
Randy Quaid and Evgenia Quaid are in pro per.
TENTATIVE RULINGS:
Both motions are denied.
Motion to compel Turicchi compliance with subpoena: The Quaids filed their motion on June 28, 2024, seeking to compel the Turicchis to comply with a subpoena which the Quaids contend was served upon them May 14, 2024. The subpoena sought a “non-fabricated photograph” of a sign posted on the front gate of the property, and for the identity of the “friend” who allegedly created the sign. The motion contends that the information is critical to the fair resolution of the ongoing civil dispute concerning the property at 1335/1357 East Mountain Drive, in Montecito.
The motion contends that the Turicchis had the Quaids “falsely citizen’s arrested” on the property in September 2010, at a time when the Turicchis’ claim of ownership was under a void title from the Bermans in 2007, and they had not yet perfected a 5-year adverse possession claim to the property. In October 2010, the Turicchis posted a sign on the front gate to the property “threatening harm” to the Quaids if they returned. Plaintiffs produced emails in November 2023 which reveal that multiple witnesses observed and photographed the sign. Since that time, the Quaids have made exhaustive requests for production of a photograph of the sign which had been posted on the gate, and have also requested the Turicchis to provide the name of the person who Mrs. Turicchi says made the sign. The subpoenaed a copy of the photograph and the name of the friend on May 14, 2024, but plaintiffs failed to respond by the June 14, 2024 deadline, and on June 20 responded providing “a suspiciously altered PDF image” of a sign on the front gate of the property, and did not identify the friend who created it. They contend that a preliminary analysis of the PDF image of the sign suggests that the image of the sign has been digitally altered and inserted into a photograph of the front gate. They assert further that the content of the sign “does not align with the reactions of witnesses.”
Given that the preliminary analysis suggested possible manipulation, they contend that the actual photograph must be analyzed by a forensic expert using more advanced forensic tools, in order to determine the photograph’s authenticity. They therefore seek an order compelling plaintiffs to fully comply with the subpoena, and permitting the Quaids to engage a forensic expert to analyze the photograph.
The PDF image of the photograph in question, produced by the Turicchis on June 20, 2024, is attached to the motion as Exhibit A, and depicts what appears to be a wooden gate, arched at the top, and attached to a stone wall. On the gate is affixed what appears to be a white, rectangular sign with red lettering, which states:
To the couple arrested.
This is not your property.
Shy of purchasing it from me—
KEEP YOUR ASS OFF
MY PROPERTY.
Opposition The Turicchis have opposed the motion, on multiple bases. First, they note that the discovery cut-off was 30 days prior to the then-June 24, 2024 trial date, and the Quaids’ subpoena called for documents to be produced on June 14, 2024, past the cut-off date. The Turicchis served written opposition noting the discovery cut-off date, and objecting that the Deposition Subpoena which had been served on counsel was not a valid subpoena, in that it was unsigned. It could not permissibly have been signed by the Quaids in any event, as the only persons authorized by law to issue a subpoena are a judge, court clerk, or an attorney at law who is an attorney of record. (Code Civ. Proc., § 1985, subd. (c).) Parties representing themselves are not authorized to issues subpoenas, and any subpoenas they attempt to issue are invalid. Additionally, while a Notice to Consumer was attached, it was not signed, and was not directed to any consumer.
The Turicchis object that any motion to compel production of documents pursuant to a subpoena must contain specific facts showing good cause for the discovery being sought. (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223-224.) The motion to compel does not contain any such facts.
The Turicchis explain that in connection with documents previously produced, an email was produced that referenced a sign the Turicchis had posted on their gate. One of the Quaids’ former attorneys requested a copy of the photo of the sign, but the Turicchis had not been able to locate a copy of the photo. They later located one, and that photo was produced to the Quaids on June 19. The current motion appears to contend that the photo which was produced was not genuine. However, since the photo requested was produced, there is no basis for any additional production. Further, the photo has no relevance to the slander of title cause of action against the Quaids, which is the only remaining cause of action.
Quaid motion to strike references to July 28, 2014 ruling: The motion seeks to “strike” in this case all references to and citations of this Court’s July 28, 2014 ruling, citing as authority Code of Civil Procedure section 43, and the doctrine of stare decisis. The motion contends that the ruling violated established precedent set forth by the Court of Appeal in County of Santa Barbara v. American Surety Company (Case No. B238601), which found that Randy Quaid was not lawfully required to attend the hearing in question, and vacated his bail bond forfeiture. The Quaids contend that reliance on the Court’s 2014 ruling has allowed plaintiffs to unjustly harass and defame Randy Quaid.
The Court of Appeal on November 14, 2013, ruled in favor of Randy Quaid, vacating his bail bond forfeiture and finding he was not lawfully required to attend the hearing. In spite of the ruling, Judge Sterne on July 28, 2014 issued a ruling declaring that Mr. Quaid was required to appear, and cited the Doctrine of Fugitive Disentitlement to bar him from seeking civil redress. His Code of Civil Procedure section 170.6, filed on December 29, 2020, was ignored by the court, as was a January 8, 2021 request for judicial notice and declaration of prejudice.
The motion argues that use of the ruling to paint Mr. Quaid as a felony fugitive has caused significant harm, and has unjustly maligned his character. Since the Court of Appeal determined he was not lawfully required to attend the hearing, this court must adhere to that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450; Code Civ. Proc., § 43.) Randy Quaid therefore requests that the court strike all references to and citations of the July 28, 2014 ruling, and bar any future use of it by plaintiffs and their counsel.
Opposition The Turicchis have opposed the motion, contending that the November 14, 2013 decision by the Court of Appeal was on a technical bail bond requirement, and had nothing to do with the Court’s July 28, 2014 order quashing the Quaids’ subpoena based upon the Doctrine of Fugitive Disentitlement. Only the bail bond forfeiture was vacated by the Court of Appeal decision, and that was on the basis that the court (the Honorable Frank Ochoa) should have forfeited the bond for Randy Quaid in court on November 2, 2010, as he had done for Evi Quaid, but instead continued the forfeiture issue to November 16, 2010, but then reconsidered his November 2 hearing on November 5, and ordered that the bond be forfeited nunc pro tunc to November 2, 2010. The Court of Appeal also found that, had Judge Ochoa waited until the next scheduled hearing on November 16 and, if Randy Quaid failed to appear, order forfeiture of the bond at that time, his actions would have been proper. He simply could not order forfeiture of the bond at a time when there was no scheduled hearing, since a bond can only be forfeited when a person subject to the bond does not appear at a hearing. It was only for that reason that the forfeiture was ordered reversed.
None of the issues which formed the basis for the Court of Appeal’s decision had anything to do with the fact that the Quaids were fugitives for justice, which is the issue this Court decided on July 28, 2014. Consequently, there is no basis to strike the 2014 order or any reference to it in this case.
Further, the Quaids remain fugitives from justice, and the Doctrine of Fugitive Disentitlement still applies to them. The Turicchis request judicial notice of the Criminal Complaint against the Quaids, which is still pending, arguing that their failure to return to California to face those charges makes them continue to be fugitives from justice.
Reply The Quaids filed extensive reply papers. They first focus upon the language of the Court of Appeal that Randy Quaid “. . . was not obligated to appear,” and argue that tit doesn’t matter that the appellate ruling was based on a technicality due to a lower court’s error, and its language is binding on this court. They contend that even if the ruling was based on a technicality, it still provides a strong legal foundation for arguing that Randy Quaid was subject to unlawful procedures, reinforcing his case for relief under Code of Civil Procedure section 473(b).
The Quaids argue that plaintiffs failed to distinguish facts leading to the 2013 appellate decision, including misidentifying the judge whose decision to forfeit an alleged bail bond nunc pro tunc was overturned. They assert that the 2013 decision is not irrelevant to the 2014 order, contending that the ruling quashing the Quaids’ subpoena was based upon a Quaid attorney disqualification issue, and the court tacked on as an alternative reason the Doctrine of Fugitive Disentitlement, effectively branding the Quaids as felony fugitives who failed to appear. Plaintiffs defend the ruling’s flawed reasoning, but the appellate ruling is what it is, and must be honored.
The Quaids then raise an issue regarding findings of the California Department of Insurance regarding the validity of the forfeiture of Evi Quaids’ bail bond in 2010. They note that they sued the American Surety Company (ASC) in Indiana in 2014, and that ASC turned over the results of the California Department of Insurance investigation that agreed with the Quaids’ 2013 complaint that the Quaids took no cash bail in exchange for their September 2010 release, as the Santa Barbara District Attorney and Santa Barbara Sheriff’s Department falsely contained in their motions and statements in court. An August 12, 2013 Department of Insurance letter to ASC declared the Quaids’ complaint regarding the bail bonds to be justified under Section 2694 of the California Code of Regulations, agreeing with the Quaids that they took no bail bonds in exchange for their September 2010 release, and that the alleged bail bonds were extortionate. ASC concealed those findings from the Court of Appeal at the time it was considering the bail forfeiture issue. With no proper notice from the bond company as to their next appearance, the Quaids were not required to appear and the warrants for non-appearance are not valid. There was also never a bail hearing after the Quaids’ September 2010 false arrest. As a result, neither plaintiffs nor the Court can label the Quaids as “felony fugitives”, and all references to them as such must be stricken in the interests of fairness.
The Quaids then include a section entitled “The Turicchis’ nefarious motives and misleading statements,” in which they argue that the Turicchis had no interest in the property and did not own it in 2010, since they had not yet owned it for five years, contending that the court’s summary adjudication ruling gave the Turicchis’ ownership as of 2012. They may claim they believed they owned the property based upon the forged, void deed form Berman, and that the Quaids are felony fugitives, but the Cobb forensic evidence, the Berman dissolution agreement, the Department of Insurance findings, the Vermont Superior Court denial of extradition based upon the District Attorney’s failure to show probable cause, the District Attorney’s numerous procedural errors, all supported by well-settled law, “dispel that illusion.”
The Quaids argue that the Turicchis are relying on their own “false” citizen’s arrest of the Quaids for trespassing a property in which the Turicchis had no legal interest in 2010, so as to smear the Quaids as felons in 2023 and 2024. The charges were brought against the Quaids based solely on the Turicchis’ misleading and perjured statements and fabricated evidence of a broken mirror that they have admitted in writing was not broken. The Quaids’ argue that their Fifth Amendment rights were violated when they were not properly noticed for an appearance, and the invalid bail bonds and misimpressions by the District Attorney’s office continue to unfairly deprive them of their liberty. The District Attorney’s and Sheriff’s errors have compromised their right to a fair trial and violated their Sixth Amendment rights. They are being treated from other similarly situated, in violation of their Fourteenth Amendment right to equal protection under the law. The issuance of warrants based on insufficient evidence and procedural errors is an unreasonable seizure without due process, in violation of the Quaids’ Fourth Amendment rights.
ANALYSIS: For the reasons more fully articulated below, both motions will be denied.
Motion to compel compliance with subpoena The motion is denied.
Apart from the significant technical insufficiencies with the subpoena, and the fact that the discovery cut-off took place in this case prior to the date for production set forth in the subpoena, the motion simply makes no attempt to explain how or why any such photo has any possible relevance to the remaining claim in this action, i.e., the Turicchis’ claim against the Quaids for slander of title. Indeed, even if the other claims alleged by the Turicchis against the Quaids had not already been adjudicated in this action, the photo at issue in the subpoena does not appear to have any relevance to those claims either.
Further, the Quaids apparently seek the actual photograph so that they can conduct tests on the photograph to determine whether it was altered or manipulated in some manner, but they have never explained how that fact has any relevance to any issue in this action. It doesn’t even appear to have relevance to the claims which the Quaids attempted to insert into this action, with respect to their previously-heard motion for leave to file a cross-complaint for identity theft, mail theft, and mail fraud.
Certainly, it appears from the motion that the Quaids took considerable offense from the posting of the sign and its contents. However, that does not mean it has any relevance to the action.
Finally, the Turicchis have indicated that they have not been able to locate anything other than the PDF copy of the photograph which they provided to the Quaids. The Court simply cannot compel a party to produce something they do not have.
For these reasons, the Court has no option but to deny the motion to compel compliance with the subpoena.
Motion to strike reference to July 28, 2014 ruling The motion is denied.
While the current motion is fashioned as a motion to strike, it appears to the Court to be more of a motion in limine to preclude any reference to the 2014 ruling at the trial of this action, and the Court will evaluate it as such.
In order to resolve the current motion, reference to several distinct bodies of law is necessary, including: (1) Availability of a bench warrant for a felony defendant’s failure to appear for arraignment; and (2) Impact (or lack of impact) on the availability of a bench warrant caused by the invalidity of a trial court’s order of forfeiture of bail, and/or the invalidity of a bail bond in general.
1. Arraignments and bench warrants.
Pursuant to Penal Code section 977(b)(1), one who is charged with a felony “shall be physically present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at all time of the imposition of sentence. . . .” Pursuant to Penal Code section 978.5(a) permits issuance of a bench warrant of arrest when a defendant fails to appear in court as required by law. Further, Penal Code section 979 provides that if a defendant has been discharged on bail, and does not appear to be arraigned when his personal presence is necessary, the court, in addition to the forfeiture of the undertaking of bail may order the issuance of a bench warrant for his arrest.
The fact that felony defendant does not have actual notice of the hearing date at which their presence in court was required by law has no impact on the validity of the bench warrant issued based upon their failure to appear. (Valderas v. Superior Court (2021) 72 Cal.App.5th 172, 181-183.)
2. Bail Forfeiture.
Penal Code section 1305(a)(1) provides that “a court shall in open court declare forfeited the undertaking of bail or the money or property deposited as bail if, without sufficient cause, a defendant fails to appear for any one of the following: (A) Arraignment. (B) Trial. (C) Judgment. (D) Any other occasion prior to the pronouncement of judgment if the defendant’s presence in court is lawfully required. (E) To surrender himself or herself in execution of the judgment after appeal.
Pursuant to Penal Code section 1305.1, if a defendant fails to appear for arraignment (or other specified events at which personal appearance is required), but the court has reason to believe that sufficient excuse may exist for the failure to appear, the court may continue the case for a period it demes reasonable to enable the defendant to appear without ordering a forfeiture of bail or issuing a bench warrant. If, after making the order, the defendant, without sufficient cause, fails to appear on or before the continuance date set by the court, the bail shall be forfeited and a warrant for the defendant’s arrest may be issued.
3. Application to the Quaids.
The essence of the Quaids motion, as best as this Court has been able to discern, is that any mention of the fugitive disentitlement doctrine, or the Court’s 2014 ruling regarding application of that doctrine to them in another case, is improper because they are not actually “fugitives from justice.” In making that argument, they rely upon language set forth in County of Santa Barbara v. American Surety Company (2013) 2013 WL 6018066, to the effect that Randy was not required to be in court on November 5, 2010, the date on which his bail was ordered forfeited.
The argument misunderstands both what occurred, and what was determined by the Court of Appeal in that case. According to the recitation of facts set forth in the appellate decision, the Quaids were arrested for felony vandalism on September 18, 2010, and bail was posted for their release on September 19, 2010. When they failed to appear at the October 18, 2010 arraignment (a hearing at which, as felony defendants, their presence was mandated by the provisions of Penal Code section 977(b)(1)), the Quaids attorney requested a continuance, and the trial court continued the arraignment to October 26, 2010. Several days later it was discovered that the Quaids were in Canada. On October 22, 2010, based upon their non-appearance and flight risk, the court granted the prosecution’s motion to increase their bail to $500,000 each.
On October 26, 2010, the attorney again appeared and requested that the arraignment again be continued, and the trial court continued the arraignment to November 2, 2010, and ordered the $50,000 bench warrants to remain outstanding. After the hearing, the bail agent posted a $500,000 bail bond on each bench warrant.
On November 2, 2010, the Quaids failed to appear. The trial court ordered Evi Quaid’s $500,000 bail forfeited. It recalled Randy’s bench warrant and ordered it held to November 16, 2010, pursuant to Section 1305.1. On November 5, 2010 (a date on which no hearing was scheduled at which the Quaids’ presence was required by law under Section 977(b)(1)), the trial court reconsidered its ruling, found there was no good cause for Randy’s non-appearance, and ordered Randy’s bail forfeited nunc pro tunc as of November 2, 2010.
While the law regarding the issuance of bench warrants and the law regarding the forfeiture of bail frequently operate in tandem, give that both are triggered by the failure to appear for a hearing at which the felony defendant is required by law to personally appear, they are separate and distinct. The forfeiture of a bail bond for a defendant who has failed to appear in court when required by law, has no impact on the validity of a bench warrant for an individual’s arrest, based upon the same failure to appear in court when required by law.
The Quaids were required by law to personally appear in court for their arraignment, and for each successive, continued hearing date for such arraignment, including October 18, 2010, October 26, 2010, November 2, 2010, and November 16, 2010. They did not do so. As a result, the bench warrant that had been issued based upon their failure to appear for their arraignment was valid and enforceable, regardless of whether their bail was either properly or improperly imposed or ordered forfeited. For as long as the bench warrant remains in effect, the Quaids are considered “fugitives from justice,” because they are fully aware that they are being sought pursuant to court process in a criminal action. (See People v. Kubby (2002) 97 Cal.App.4th 619, 624, quoting Estate of Scott (1957) 150 Cal.App.2d 590, 592.) This is true regardless of whether they had advance notification of the precise date for the arraignment. (See Valderas v. Superior Court (2021) 72 Cal.App.5th 172, 181-183.)
The reason the Court of Appeal found that it was impermissible for the trial court to declare a forfeiture of Randy’s bail on November 5, 2010, was that there was no hearing set on that date at which Randy was required by law to personally appear. This is also why the Court of Appeal noted that it would have been proper for the trial court to declare the forfeiture in open court on November 2, 2010 (a scheduled date for the arraignment, at which Randy Quaid was required to personally appear in court pursuant to Penal Code section 1305), or November 16, 2010 (a continued hearing date for the arraignment, at which Randy Quaid was required to personally appear in court pursuant to Penal Code section 1305.1). Nothing in the Court of Appeal opinion ever said that either Randy Quaid or Evi Quaid were not required to personally appear in court for their arraignment, no matter what date it was scheduled for.
While the Quaids also, in their reply papers, make arguments with respect to the validity of the criminal charges against them, that issue, too, is irrelevant to the question of whether they are truly fugitives from justice. Legally, their remedy is to submit to the jurisdiction of the criminal court and establish their claims before that court at trial.
Because the validity of the criminal charges against them, the validity of the bail bonds which were issued, and the validity of a trial court’s order of forfeiture of the bail bond, all have absolutely no impact on the validity of the bench warrant issued by the trial court based upon their failure to appear at a hearing at which their appearance was required by law (i.e., arraignment), the basis for their motion—that they are not in fact fugitives from justice because they were not required to be present in court—is legally erroneous, requiring that the motion be denied.
4. Future proceedings
Having ruled on the motion that was filed, the Court notes that there could be other bases for an order precluding the mention of the Quaids’ fugitive status at trial, which were not raised in the motion. Due process would preclude the Court from entertaining at this time any grounds for exclusion that were not raised by the moving papers, and for which the parties have not notice or an opportunity to respond.
The Trial Confirmation Conference for this action is currently scheduled for January 27, 2025. Prior to the commencement of trial, the parties will have an opportunity to present motions in limine to address evidence which the party contends should not be admitted or mentioned in front of the jury. This would include motions based upon Evidence Code section 352, which provides:
The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
Certainly, the fact does not readily appear to have any significant relevance to the remaining slander of title cause of action against them, which will be the subject of the upcoming trial. However, the Court has not evaluated the issue, nor has it reached any conclusion regarding whether evidence of the Quaids’ alleged fugitive status would meet the standards for exclusion under Section 352, and is merely positing that it would be amenable to considering a properly supported motion in limine made on this basis, when the time for trial nears.