To the Court of Appeal, there is no such thing as a “wrongly decided” Supreme Court case

one version of the ALA Organization Chart

Stare decisis principles and relationships among courts are not this complicated
ALA staff via Compfight

Last week, I wrote about Miranda v. Anderson Enterprises, Inc., case no. A140328 (1st Dist., Oct. 15, 2015), describing how the appellant there benefited from a Supreme Court decision (Iskanian) that came out after the judgment from which the appellant appealed, and which so squarely addressed the issue on appeal that the Court of Appeal spent only a paragraph on its substantive discussion of the case.

Given that controlling authority and the rules of stare decisis, under which a California Supreme Court opinion binds all lower courts in the state, what could the respondent — or any similarly situated respondent — do?

First, a respondent can look for ways to challenge the appealability of the judgment, as the Miranda respondent did (unsuccessfully). Second, a respondent can do its best to distinguish the case from the case on appeal; perhaps it is not as controlling as it appears to be at first blush. But given how concisely the Court of Appeal dealt with the merits, distinguishing Iskanian probably was not an option for the Miranda respondent.

I can tell you one thing that will never work, at least not until the Supreme Court decision has been disapproved by a later Supreme Court decision: arguing to the Court of Appeal that the Supreme Court decision was wrongly decided. Yet, respondent argued that in Miranda, apparently relying on rationale set forth in some federal decisions:

Respondents’ sole argument is that Iskanian was wrongly decided. However, Iskanian is binding on this court, regardless of any contrary holdings by lower federal courts. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; Montano v. The Wet Seal Retail, Inc. (2015) 232 Cal.App.4th 1214, 1224, fn. 5 [“We recognize that several federal district courts in this state have found PAGA waivers to be enforceable . . . . However, ‘ “[d]ecisions of the lower federal courts interpreting federal law, although persuasive, are not binding on state courts.” ’ ”].)

It can be awfully difficult for a respondent to concede anything on the appeal. But, if the Court of Appeal is correctly characterizing the respondent’s argument, this “wrongly decided” argument never really stood a chance.

The lack of a reporter’s transcript can kill your appeal


Court reporter’s stenotype machine keyboard layout. Public domain image from Wikipedia.

Jameson v. Desta, case no. D066793 (4th Dist. Oct. 20, 2015) is a grim reminder of the impact made by the court’s budget crisis, which resulted in the loss of many court-employed court reporters, requiring that parties provide their own court reporters for trial at their expense. The trial in this case went unreported, and that was enough to keep the plaintiff from prevailing on appeal. But before I get to how that came about, let me briefly describe the history of the case, for it makes the result all that much more heartbreaking for the plaintiff.

Plaintiff sued a prison doctor for malpractice. The doctor obtained a judgment on procedural grounds, plaintiff appealed, and got the judgment reversed. The doctor obtained a second judgment on procedural grounds, and again, plaintiff got the judgment reversed on appeal. The doctor then obtained judgment for the third time, this time by prevailing on a summary judgment motion, and again, plaintiff got the judgment reversed on appeal.

By now, plaintiff has been litigating for a decade, and the really amazing thing is that he has done it while incarcerated and without an attorney.* Surely, that perseverance would be rewarded by a payoff at the end of this long, winding road?

Unfortunately for the plaintiff, no. After remand from the third appeal, the case went to trial before a jury, but without any court reporter. The doctor made an oral motion for nonsuit at the end of plaintiff’s opening statement, the court granted the motion, and plaintiff appealed from the resulting judgment. The fourth appeal proves to be the charm for the doctor, because plaintiff’s challenges fall short, and the judgment for the doctor is affirmed.

Plaintiff made multiple challenges to the judgment on appeal, but two of them are directly related to the transcript. First, he contended that the trial court erred in failing to provide a court reporter, suggesting that the court gave him inadequate notice that an official court reporter would not be available and that the court should have provided a reporter because plaintiff had obtained an order waiving court fees. But he received notice about the reporter 10 days before trial, which the court found adequate. And, while Government Code section 68086, subdivision (b) indeed provides that the official court reporter fees are waived, the Court of Appeal held that section “does not mandate that a trial court provide indigent litigants with court reporter services where no official court reporter is provided by the court, as was true in this case.” Further, the trial court’s local rules specified that even parties with fee waivers are responsible for the costs of providing a reporter where no official reporter is provided.

Second, plaintiff argued that the trial court erred in granting the motion for nonsuit. Here, the absence of a court reporter’s transcript was fatal. Because the absence of a reporter’s transcript precludes an appellant from raising “evidentiary issues” on appeal, and a motion for nonsuit following the opening statement requires the trial court to “review the evidence to be presented at trial,” plaintiff could not demonstrate any error, even though the court’s minute order was fairly detailed.

The court was not unsympathetic to the difficulties faced by an incarcerated and indigent litigant, but the rules won out:

This court is fully aware that [plaintiff’s] incarceration and his financial circumstances have made it difficult for him to pursue his claims in court. This case aptly demonstrates that civil justice is not free. While this court is sympathetic to the plight of litigants like [plaintiff] whose incarceration and/or financial circumstances present such challenges, the rules of appellate procedure and substantive law mandate that we affirm the judgment in this case.

(Footnotes omitted.)

Of course, it’s possible the plaintiff would have lost his appeal even if he had a reporter’s transcript. But he’ll never know.

* Actually, it’s not clear from the opinion whether the plaintiff was incarcerated the entire time, but it appears he was incarcerated for at least part of the litigation.


It is imortant to keep up with the law while your appeal is pending

Goed Zoekveld

Keep an eye on developments in the law while your appeal is pending.
Image courtesy of Bart van de Biezen via Compfight

Most lawyers I know — at both the trial level and the appellate level — keep up with the daily “advance sheets,” which provide a brief summary of Supreme Court and Court of Appeal decisions published the day before. It is an important habit, because you never know when a great decision for your pending case is going to come up. I worked for an attorney who contended it is malpractice for an attorney not to review the advance sheets daily.

For a great example, see Miranda v. Anderson Enterprises, Inc., case no. A140328 (1st Dist., Oct. 15, 2015), where the plaintiff/appellant gained the benefit of a Supreme Court decision that came out while his appeal was pending. The Supreme Court case, Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, required reversal of the judgment that would have otherwise deprived Miranda of the right to arbitrate representative claims under the Labor Code Private Attorneys General Act (Lab. Code, §2698 et seq.). Iskanian was so directly on point that it required only a paragraph of substantive discussion in the Court of Appeal opinion. Of course, the case might have been decided the same way without the Supreme Court’s Iskanian decision, or the Court of Appeal may have asked for supplemental briefing on the effect of Iskanian had neither party addressed it in the briefing, but the new case sure made it easier for appellant to brief the appeal.

The obvious application of the Iskanian holding probably explains why so much of the Court of Appeal opinion in Miranda was spent on the subject of appealability. Faced with a controlling Supreme Court opinion, the respondent probably thought its best hope for keeping the judgment in place would be to get the appeal dismissed for lack of appealability, and spent the bulk of its brief on that issue. However, the respondent failed to convince the Court of Appeal that the judgment was not appealable, leading to reversal based on Iskanian.

Third District Court of Appeal creates a “quagmire” regarding Prop 47 sentence reductions

Prop 47

You don’t have to take my word for it. The court uses the word “quagmire” in yesterday’s decision in People v. Scarbrough, case no. C075414 (3d. Dist. Sept. 29, 2015), in which it holds that a trial court lacks jurisdiction to recall and reduce sentences under Proposition 47 when the judgment for those crimes is on appeal.

First, a brief reminder of what the California electorate voted into law last November. Prop 47 reclassifies certain crimes from felonies to misdemeanors and provides that persons convicted of felonies that are now classified as misdemeanors may “petition for a recall of sentence” to request resentencing under the new standards.

You can imagine there are quite a few defendants in line for this process. The Los Angeles Times reported just a few weeks after passage of Prop 47:

Judges expect that tens of thousands of Californians may seek to have their felony convictions reduced. Courts have had to scramble to handle the surge in workload, and some agencies are planning to ask for more public funding to cover the added duties.

Now, on to the quagmire. Defendant Scarbrough appealed her felony convictions. While her appeal was pending, she also filed a Prop 47 petition to be resentenced on the same convictions, and the trial court entered an order reducing her original sentence of 9 years, 4 months to just 6 years. Scarbrough attempted to abandon her appeal, but the Court of Appeal refused to dismiss it and asked for supplemental briefing on “an issue that is likely to recur and to otherwise evade review” — whether the trial court had jurisdiction to rule on a petition for recall and resentencing while appeal from the same convictions was pending.

Because the trial court determined that the trial court lacked such jurisdiction, its order reducing Scarbrough’s sentence is void. The obvious question then becomes: What about other defendants that have already been resentenced while their appeals were pending? Well, the court acknowledges that its ruling creates a mess, but provides no guidance as to how it will be cleaned up:

We do recognize that several people with pending appeals have been resentenced ostensibly pursuant to section 1170.18 while their appeals were pending. This does create a quagmire, especially as regards individuals who have been released as a result of  their resentencing. However, that is an insufficient reason for us to find concurrent jurisdiction where it was not statutorily afforded.

Given the news coverage about the “flood” of Prop 47 petitions — the Sacramento Bee reported last month that 4,347 prisoners had been release under prop 47 through the first week of August, with many thousands more having been resentenced without being released — I was surprised that the court said that several” people had their resentencing petitions granted while their appeals were pending. While it makes sense that the vast majority of the petitions are from prisoners whose appeals are long over, “several” still strikes me as a surprising characterization of the number that have been resentenced or released while their appeals were pending.

Perhaps that makes the term quagmire all the more significant. If “several” void resentencing orders create a quagmire, what would have been created if the number of void resentencing orders numbered in the hundreds or thousands?

The implications on appeal of “clarified” trial court orders

EraserIt drives me crazy when an adverse party asks the trial court to “clarify” a recent ruling. Too often, such a request is not a request for clarification at all, but instead an effort to expand the scope of the order or otherwise change its meaning. Funny how these requests for “clarification” are brought up after an attorney realizes he neglected to make an argument, ask for a specific form of relief, or prejudiced his client’s interest by an admission in court.

Such was the case in In re Christopher B., case no. C077467 (3rd Dist. Sept. 28, 2015), a “Murphy conservatorship” proceeding. (Welf. &  Inst. Code, §§ 5000, et seq., 5008, subd. (h)(1)(B), 5361; Pen Code, § 1370.) A Murphy conservatorship is premised on the proposed conservatee’s mental unfitness to stand trial on specified crimes and the lack of prospect of restoration to competency. There must be a pending criminal proceeding in order to establish a Murphy conservatorship . . . which is where the problems started for the Public Guardian seeking to establish the conservatorship.

Christopher B. was charged by criminal complaint with the prerequisite crimes and found not competent to stand trial, and his criminal proceedings were stayed while he was committed to a state hospital. As he neared the end of his maximum legal commitment there, the hospital determined that he could not be restored to competency because he refused voluntary treatment, and recommended a Murphy conservatorship.

With Christopher B.’s release imminent and the prosecutor unable to file a criminal information because of the stay of proceedings, the prosecutor instead obtained a new grand jury indictment on the same charges in order to establish the criminal proceedings prerequisite to a Murphy conservatorship.

You might be thinking that the indictment maneuver involved some sleight-of-hand, but it was perfectly legitimate. The sleight-of-hand wasn’t attempted until later (though I am not alleging it was intentional sleight-of-hand), after the prosecutor agreed to have the court dismiss the “charges” against Christopher B. Apparently recognizing after the fact that the dismissal of the charges would eliminate the prerequisite for a Murphy conservatorship, the prosecutor asked the court to “clarify” its ruling so that it dismissed only the original complaint and not the subsequent indictment. Even though Christopher B.’s defense counsel acquiesced to this request, that wasn’t the end of the matter.

In the conservatorship proceeding, Christopher B. argue that there was insufficient evidence of the prerequisite pending criminal proceeding. But wait, you say to yourself, didn’t the criminal court clarify its order to specify that the dismissal applied only to the complaint and not the indictment? The Court of Appeal doesn’t buy that for one minute, finding that this amounted to much more than a clarification:

In the present case, the criminal court issued an order of dismissal unambiguously dismissing the entire case at the request of the prosecution. Having realized the effect on the continued viability of the conservatorship proceeding, the prosecutor then sought on the next day to convince the criminal court to “clarify” that its ruling applied only to the underlying complaint. (It is unclear why the prosecutor chose to pursue this subterfuge rather than take the straightforward route of seeking a reindictment; at oral argument the parties did not explore, beyond conclusory assertions with limited analysis, whether a second prosecution would have been time barred.)

(Emphasis added.) In other words, this was not merely a clerical correction, which a trial court can always make. This was a correction of judicial error of a final judgment, something the criminal trial court had no jurisdiction to do. Calling the criminal trial court’s conduct “transparent efforts to garb its reconsideration of its dismissal of the criminal case in the cloak of “interpreting” an otherwise unambiguous dismissal order,” the Court of Appeal finds that the trial court lacked jurisdiction to correct the judgment, the original judgment dismissing all charges (thus applicable to the complaint and the indictment) stands, and there is thus no evidence of a pending criminal proceeding, requiring that the order establishing the Murphy conservatorship be reversed.

The lesson of Christopher B. is that a trial court’s “clarification” of a ruling must be closely examined to see if it implicates jurisdictional concerns. Litigators should consider this when seeking or opposing such clarification, and lawyers on appeal should give such “clarifications” special scrutiny.

The kitchen sink has no place on appeal

We’ve all heard of doctors lamenting the need to order lots of tests for the most mundane symptoms in order to protect themselves from malpractice lawsuits. Are lawyers exhibiting equivalent behavior?

Last week, a post at the Lawyerist blog (Want To Destroy Your Case? Throw In The Kitchen Sink.) featured a federal district court decision adopting the recommendations of the magistrate judge to order sanctions all around in a sexual harassment lawsuit — i.e., all of the attorneys on both sides had monetary sanctions imposed against them. On the plaintiff’s side, the attorneys were sanctioned for what Lawyerist called “evidence-free sexual harassment and retaliation allegations.” On the defense side, the attorneys representing the employer objected that they were being sanctioned merely for aggressively defending their client, but the district court noted that “there is a difference between a vigorous, effective defense and the kind of gross overlitigation and unreasonable and vexatious multiplication of proceedings which occurred here.”

Aside from sanctions, the litigation tactics summarized by the district court ( and detailed in the magistrate judge’s report) posed the risk that the better points in each side’s case got lost in the noise of all the unnecessary chatter.

That risk is also quite high, and arguably higher, when similar tactics are adopted in an appeal. In trial proceedings, various “overlitigation” tactics might be employed piecemeal over time, and the occasional golden nugget has a chance to stand out because it is presented in relative isolation. In an appeal, however, the appellant’s opening brief hits the appellate court with all of his arguments at one time, which might make it harder for the decent argument to stand out from the clutter.

While I suspect that the problem of raising too many issues in an opening brief arises most often when trial attorneys continue to represent their clients on appeal and are unable to “let go” of certain pet issues that have no place in the appellate court, or when the appellant has an inexperienced lawyer or is self-represented on appeal, even veteran appellate lawyers have to struggle with issue selection. Any time I come up with more than three or four arguments to make in an appeal, I get suspicious of my own analysis, and I consider very carefully whether all of the issues should be raised.*

I think that lawyers that forego any careful consideration of how to narrow the issues, and wind up throwing in the kitchen sink, might be depending on the good graces of the appellate court to pluck the meritorious needles out of the legal haystacks presented in their briefs. Appellate judges don’t simply throw up their hands and discount every argument raised by an appellant every time an opening brief contains a lot of different arguments that seem unmeritorious at first. Aside from the matter of professional integrity, there’s also the matter of having to justify their ruling in a written opinion, so you can bet they spend time trying to decide if there is a meritorious argument in the bunch.

Perhaps you’re thinking, As long as the court is going to look for my best arguments anyway, what’s the risk? I’ll throw in everything and let the court sort it out. The risk is that you might actually conceal your best arguments. Appellate judges (and their research attorneys) are smart, but they are not infallible. Clutter your brief enough, and the one argument that actually stood a chance at winning might not be recognized. And, if none of your arguments is any good, I suspect you are better off minimizing their number. A brief containing 15 meritless arguments is probably more likely to draw monetary sanctions than a brief containing just one or two meritless arguments, as the court will consider the former a greater waste of its time and the number of meritless arguments may be seen as evidence of the frivolousness of the appeal.

UPDATE (9/29/15): At his Briefly Writing blog, Alabama appellate lawyer Michael Skotnicki shares some related thoughts. In a post called The Risks of a “Hinge Point” Appellate Argumenthe comments on the ultimate narrowing of issues: asserting a single issue on appeal.


*In some complex cases, of course, more complex briefing is required. Consider, for example, the brief proffered on appeal by the defense team for former Enron CEO Jeff Skilling: the Fifth Circuit Court of Appeals gave them permission to file a brief 58,922 words long — more than four times as long as normally permitted under the rules — which generated quite a bit of buzz on legal blogs. But Skilling was convicted of 19 counts after a three-month trial and the record on appeal approached 47,000 pages; your average appeal is not going to be that complex. (To put the length of Skilling’s brief in perspective, consider that George Orwell’s Animal Farm is less than 30,000 words long, and Lord of the Flies is less than 63,000 words long; of course, some novels are hundreds of thousands of words long.)

Language help for everyone, not just lawyers

In his latest book, The Sense of Style — described by one columnist as “a modern version of Strunk and White’s classic The Elements of Style, but one based on linguistics and updated for the 21st century” — Harvard cognitive scientist and linguist Steven Pinker explores the most common words and phrases that people stumble over.

My favorite in the list (emphasis and brackets in original):

Irregardless is not a word but a portmanteau of regardless and irrespective. [Note: Pinker acknowledges that certain schools of thought regard “irregardless” as simply non-standard, but he insists it should not even be granted that.]

Correct: Regardless of how you feel, it’s objectively the wrong decision. / Everyone gets a vote, irrespective of their position.

This is my favorite for two reasons.

First, in a list of misconceptions about the correct use of some very common words, use of the word “portmanteau” is hilarious.  I confess I had to look it up. If someone had thrown that word at me without any context, I would have guessed it is a wine.

Second, I agree with Pinker that “irregardless” should not be “granted” the status of non-standard usage. The word drives me crazy.

But that horse has already left the barn. A few years ago, I heard on the radio that dictionaries add new words every year. In itself, that is not surprising. Often, the added words are recently coined slang terms that have gained widespread usage, such as photobomb. Such words have probably been defined in the Urban Dictionary for years before they finally make it to a mainstream dictionary. But the reason this was covered in the radio news was because the word “irregardless” was added by a mainstream dictionary that year, with a full acknowledgment that its normal usage was grammatically incorrect, and that it was nonetheless added because its misuse was so widespread. It seems that if a word is used incorrectly often enough and long enough, it earns dictionary status.

This is how language evolves, I suppose. But if English keeps evolving this way, no one is going to understand what anybody else is saying.

My second favorite on the list:

Literally means in actual fact and does not mean figuratively.

Correct: I didn’t mean for you to literally run over here. / I’d rather die than listen to another one of his lectures — figuratively speaking, of course!

Misuse of the word “literally” in place of “figuratively,” like any use of “irregardless,” drives me crazy — figuratively, of course. If it bothers you as much as it bothers me, you can express that through t-shirts. There seem to be enough t-shirts on the topic to wear a different design every day of the week. Literally.

You can see more of the list at Business Insider.

OMG! Can you imagine writing an argument in the style of an email or a text?

If not, then why write emails and texts the way you do?

In this article at The Federalist, staff writer Philip Wegmann takes millennials and curmudgeons alike to task for degrading the quality of written communications.

The piece starts with this:

On the floor of the Senate, surrounded by elected officials and important dignitaries, an eccentric inventor started texting.

On May 24, 1844, with an electrical wire strung from DC to Baltimore, Samuel Morse transmitted the first telegraph, forever transforming the world. Reflecting on the divine prov­idence of this tech­no­logical leap forward, Morse tapped out a message of dashes and dots that read, “What hath God wrought?”

Now Kelly texts Becky, “OMG! Look at her butt!” and businessmen email, “see attached,” squandering our great inheritance with an incessant electroshock torture of the English language. Multigenerational murder, this linguistic abuse unites and indicts the young and the old.

I’m starting to like this guy. “Multigenerational murder” and “linguistic abuse” are pretty strong terms, but Wegmann does his best to support them with examples of corporate email abuse and texting, the latter of which he describes as “the most prominent vehicle for linguistic manure.” He urges curmudgeons to clean up their own acts before complaining about millennials (of which he is one), then asks for everyone to come together to solve the “moral crisis” of the “abysmal state of language in email and texts,” before closing with this:

Looking back, will our children read through our love letters and discover our professional triumphs? Will they sift through garbled texts and impersonal emails in desperate search of some greater meaning? Or, even worse, will they shake their heads as they discover how their bickering parents and grandparents made fools of themselves one email, tweet, and text at a time?

Every time we press send, we decide what God hath wrought, we influence whether advances in communication amount to a blessing or a curse. Emails and texts can elevate our language and humanity, or they can turn us into sentient beasts beating on keyboards and talking past one another.

Millennials and curmudgeons should work to save language. The choice is ours to make together.

Jeez, now I’m thinking that I don’t just like this guy, I love this guy!

Wegmann’s article may explain what I have been feeling intuitively to this point, as well as why I engage in some very “old school” communications. I send friends and family letters handwritten with a fountain pen. Soon after I meet someone I would like to keep in touch with as part of my professional network, I send that person a note handwritten with a fountain pen on personalized embossed stationery. I don’t know if those notes have generated any business, but I’ve heard from almost all the recipients about how delighted they were, and how unusual it was, to receive a handwritten note, and that’s enough satisfaction for me. I like to think that my habits will survive even if the decline Wegmann perceives continues apace.

I’m sure there are plenty of people who could mount a credible defense against Wegmann’s charges (as some of the commenters on the article do), and even I recognize the convenience of shorthand (at least in texting), and justifications for texting in general. My feelings are not a dislike for technology generally. (You may recall that I recently disclaimed being a Luddite.) I like technology, but I find myself more resistant to using it for communications. I know that it is somewhat ironic for a blogger to lament electronic communication, but I like to think that I don’t let my blog writing descend to the level lamented by Wegmann. I admit that I tend to slack off somewhat in blogging and emails. I use more colloquialisms than I would in other professional writing, and I use contractions. I think that’s about as far as I go, but if any readers wish to contend otherwise, feel free to use the comments to point out my other flaws.

Note: Don’t refuse to click the link to the article just because The Federalist is very political and you may not agree with its politics. There is nothing political in the piece.

UPDATE: Well, that didn’t take long: another writer at The Federalist posts her response to Wegmann in an article titled Get Used To It: Emails Are Here For Good, with the subheading, “Hating on email is a misplaced frustration. Email isn’t the bad guy, we are. But curt messages or sloppy grammar aren’t a new problem.”

You can’t change the rules on appeal just because you don’t like the outcome at trial: how judicial estoppel can foil your appeal

California trial courts classify civil cases as either “limited jurisdiction” or “unlimited jurisdiction,” depending on the amount in dispute. If the amount in dispute is $25,000 or less, the case is a limited jurisdiction case. If the amount in dispute is more than $25,000, it is an unlimited jurisdiction case. Thus, a court in a limited jurisdiction case cannot award more than $25,000  . . . except under the quirky circumstances of AP-Colton, LLC v. Ohaerie, case no. E059505 (4th Dist., Sept. 15, 2015).

AP-Colton is a commercial landlord-tenant dispute, in which the landlord originally sued to evict the tenants and for damages of less than $25,000. The tenants surrendered the premises, then cross-complained for: one million dollars!

At that point, the case should have become an unlimited civil case, right? The problem is that the tenants never paid the $140 “reclassification fee” necessary to convert the case from limited to unlimited status, so the clerk never reclassified the case. (Code Civ. Proc., § 403.060, subd. (b).) When the landlord amended its complaint to seek in excess of $25,000, it presumed the case had already been reclassified.

Starting with the filing of the tenants’ cross-complaint, all the parties identified the case as “unlimited” in the captions of their pleadings, and the tenants put the same label on a case management statement. The trial court entered a judgment against the tenants for about $120,000.

On appeal, the tenants contended that the judgment had to be reversed because the case had never been reclassified, the case was thus a limited one, and the judgment therefor could not exceed $25,000. Would such a result seem equitable to you, considering that the tenants were the ones to identify the case as unlimited and maintained that fiction all the way through judgment?

The Court of Appeal doesn’t think so. It invokes the equitable doctrine of judicial estoppel to prevent the tenants from benefiting from their change of position. They had, after all, contended the case was unlimited from the moment they filed their cross-complaint, and maintained that position through the entry of judgment. In other words, so long as the tenants still had a chance of winning in excess of $25,000, they maintained the case was unclassified. Once they lost, they changed their tune and tried to limit the judgment against them to the limited case limit of $25,000. Under the doctrine of judicial estoppel, a party cannot successfully take one factual position in judicial proceedings, then take a contrary factual position in later proceedings; the party is bound to its earlier position, so long as it was not the result of ignorance, fraud or mistake. The Court of Appeal finds that the doctrine applies here to preclude the tenants from taking the position that the case was a limited case.

Where was the requisite “success” the tenants had in asserting that the case was unlimited? Well, it does not take much to meet that threshold. A party’s earlier position is a “success” if “the tribunal adopted the position or accepted it as true[.]” Most times, that means the court’s adoption of the position resulted in some victory or benefit, such as a ruling in that party’s favor. Here, however, all it took to establish success was that the trial court had tried the case as an unlimited case and awarded damages accordingly against the party asserting the position. Some success! But in the judicial estoppel sense, it was a success because the court adopted the position that the case was unlimited.

Judicial estoppel does not apply if the earlier position was taken because of fraud, ignorance, or mistake. Since the tenants represented themselves from the beginning of the case to the entry of judgment in the trial court, one would think they might plead ignorance that their failure to pay the fee kept the case a limited one. Surprisingly, however, they apparently never moved to vacate the judgment on that ground (arguably forfeiting the argument), and the Court of Appeal notes that the tenants “never claimed” the benefit of this exception, even on appeal.

Jargon-filled, academic writing has no place in your briefing on appeal — but does it have its place?

Maybe so, according to Professor Cass Sunstein of Harvard Law School, if this abstract for his article summarizes it accurately:

Many people, including many lawyers and judges, disparage law reviews (and the books that sometimes result from them) on the ground that they often deal with abstruse topics, of little interest to the bar, and are sometimes full of jargon-filled, excessively academic, and sometimes impenetrable writing. Some of the objections are warranted, but at their best, law reviews show a high level of rigor, discipline, and care; they have a kind of internal morality. What might seem to be jargon is often a product of specialization, similar to what is observed in other fields (such as economics, psychology, and philosophy). Much academic writing in law is not intended for the bar, at least not in the short-term, but that is not a problem: Such writing is meant to add to the stock of knowledge. If it succeeds, it can have significant long-term effects, potentially affecting what everyone takes to be “common sense.”

Professor Sunstein’s paper is called In Praise of Law Reviews (And Jargon-Filled, Academic Writing), and is available as a free download at the Social Science Research Network.

“Close” counts in horseshoes and hand grenades, but not when it comes to identifying “new” evidence in a new trial motion

For purposes of a new trial motion, evidence is considered “newly discovered” if the party seeking the new trial “could not, with reasonable diligence, have discovered and produced [the evidence] at trial.” (Code Civ. proc., § 657, subd. 4.) Suppose the evidence is available just a few days before trial, but expert analysis can’t be completed until afterward?

That’s easy, you day. It’s trial, for crying out loud! You get your expert on it right away!

Let’s see if your answer is the same under the facts of Shiffer v. CBS Corp., case no. A139388 (1st Dist., Sept. 8, 2015), an asbestos exposure case, in which the new trial motion was filed after the defendant prevailed on its summary judgment motion rather than after a trial. In opposition to the summary judgment motion, the plaintiff’s proffered evidence of his “bystander” exposure to asbestos during the installation of piping insulation at a power plant, but it was considered inadequate.

When plaintiff moved for a new trial, he proffered a new declaration from one of his experts, dated two weeks after the summary judgment hearing, that asserted a new theory of “re-entrainment” exposure (asbestos fibers re-entering the air upon being disturbed). The expert based his analysis on two documents plaintiff had received in discovery about a month prior to the summary judgment hearing and the deposition testimony of one of defendant’s experts, who was deposed about the documents four days before the hearing. The expert had signed his original declaration in opposition to summary judgment between the time plaintiff received the documents and the deposition of defendant’s expert, which plaintiff’s expert apparently did not attend.

That’s a tight timeline, to be sure, if the opinion could only be proffered after the deposition of the defense expert, but all of the information necessary for the revised opinion was in plaintiff’s hands prior to the hearing, and that is enough for the court to find that there is no new evidence here. The court cited a case holding that “depositions conducted on [the] eve of summary judgment do not generate new facts.”

The court states there was “no justification for the delay,” but does not detail any argument by which plaintiff tried to justify it. One presumes that plaintiff argued that the documents received a month before the hearing did not allow for the supplemental opinion without the testimony of the defense expert, given just days before the hearing. But even if the plaintiffs could establish this, it seems like the court would have found the plaintiff had enough lead time, for the court also notes that the transcript of the deposition taken just days before the hearing was only 37 pages long.

Lesson learned: Don’t put off discovery to the last minute, especially when opposing a summary judgment motion. Had these depositions been conducted just a week or two earlier, plaintiff’s expert likely would have been able to formulate his conclusions prior to the hearing. If you do get jammed on discovery, at least get the rough transcripts to your experts. And, finally, why not have your expert attend the deposition of his counterpart? Yes, it will cost a few dollars, but they would have been dollars well spent in this case.

No appeal from order vacating partial arbitration award

One of the frustrations for parties forced to arbitrate their claims rather than pursue them in court is the unavailability of a direct route of appeal from the arbitration award. Generally, the only way to get out from under an adverse award is to petition the superior court to vacate the award (Code Civ. Proc., § 1285 et seq.), and then only on very limited grounds such as fraud, corruption, or misconduct by the arbitrator, generally unrelated to the substantive merits of the decision. If you’re on the other side — i.e., you were the prevailing party in the arbitration — you can take some comfort from the fact that if the loser in arbitration successfully gets the award vacated, you can appeal that order, unless it includes an order for a rehearing in arbitration. (Code Civ. Proc., § 1294, subd. (c).)

But that’s not always the case. In a decision late last year, Judge v. Nijjar Realty, Inc. (2014) 232 Cal.App.4th 619, the Court of Appeal held that when the arbitration award that is vacated fails to dispose of all arbitrable issues, the order vacating the partial award is not appealable. The appellant had procured a “clause construction award” that construed the arbitration clause to allow arbitration of class and representative claims but left the merits of those claims to later hearings. Respondent successfully petitioned the trial court to vacate the award, and the appeal followed.

After some interesting discussion about the degree to which the Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs California arbitration procedure, the court finds that appealability of the order is governed by California state law rather then the FAA, and turns next to to the language in the California Arbitration Act. (Code Civ. Proc., § 1280 et seq.) Noting the plain language of Code of Civil Procedure section 1294, subdivision (c), that an aggrieved party may appeal from an “order vacating an award unless a rehearing in arbitration is ordered,” and further noting that no rehearing was ordered, the court notes that the issue presented  is “whether the trial court’s order in this case vacated an arbitration ‘award.’ ”

If that seems like a slam dunk, think again. The CAA provides that an “award” must “include a determination of all the questions submitted to the arbitrators the decision of which is necessary in order to determine the controversy.” Since the order in this case concerned only clause construction and left other issues for future hearings, there was no appeal from the order vacating the “award.”

This closely parallels the requirement that a superior court judgment be “final,” resolving all issues among the parties, in order to be appealable. The court notes that the same policy reasons underscoring this “one final judgment” rule also support requiring a final arbitration award as a condition of appeal from an order vacating it. Without such a limitation, the court reasons, all manner of interim arbitration awards could result in appeal from orders vacating them, defeating arbitration’s intended role as “a quick and efficient form of alternative dispute resolution.” Moreover, says the court, it would be anomalous to allow appeal from orders vacating arbitration awards when no appeal would lie from their counterparts in a civil action.

The obvious question left unanswered by Judge is whether the superior court has jurisdiction to hear a petition to confirm or vacate an interim award in the first place. The court explicitly noted the issue was left hanging, since it had no occasion to decide it, but opined that a superior court’s jurisdiction in such a case is doubtful, and implicitly encouraged the appellant to file a motion fore reconsideration in the trial court upon remand. (232 Cal.App.4th at p. 634, fn. 12.) From what I can tell from the somewhat cryptic online docket for the superior court, it looks like the appellant did just that, and the motion is still under consideration as of this writing. Another trip to the Court of Appeal in the near future seems likely.

Construction defect case demonstrates a “two-fer” on grounds for obtaining review by petition for writ of mandamus

I frequently get calls from prospective clients who are “rarin’ to go” on a writ petition to challenge a trial court ruling that has them outraged but is not immediately appealable. That “rarin’ to go” attitude usually does not last beyond the point where I tell them that more than 90% of writ petitions are summarily dismissed without the petitioner ever being heard on the merits. That news usually significantly diminishes the will to petition the Court of Appeal, even as it intensifies the prospect’s outrage, as the prospect feels aggrieved not just by the trial court ruling but also by the fact that the odds of any recourse are so slim.

That’s because writ review in the Court of Appeal is discretionary. Even before convincing the appellate court the trial court erred, the petitioner must convince the appellate court that its petition should be heard on the merits. One can do this by demonstrating that an appeal after final judgment would afford inadequate relief (Code Civ. Proc., § 1086), that the ruling threatens disclosure of privileged documents (or otherwise rings a bell that cannot be unrung), or that the issue presented is one of first impression on which the trial courts require guidance or which is important to a state industry.

In McMillin Albany LLC v. Superior Court, case no. F069370 (5th Dist., Aug. 27, 2015), the Court of Appeal spells out plainly two reasons it granted review in a construction defect case in which homeowners sued their contractor. The contractor sought a stay of the action until the plaintiffs complied with the prelitigation procedures of the Right to Repair Act (the “Act,” Civ. Code, §§ 895 et seq.), which requires the plaintiffs to “give notice of the claimed defects to the builder and engage in a nonadversarial prelitigation procedure, which affords the builder an opportunity to attempt to repair the defects.” Plaintiffs broke off negotiations regarding a stay, dismissed their statutory cause of action under the Act, and asserted that they were not obligated to comply with the prelitigation procedures of the Act to pursue their remaining common law causes of action. The contractor moved for a stay of proceedings pending compliance with the prelitigation procedures and, when the trial court denied it, petitioned the Court of Appeal for a writ of mandate directing the trial court to vacate its ruling and grant the motion for a stay.

Before holding that the plaintiffs were still required to comply with the Act’s prelitigation procedures despite dismissing their only cause of action asserted under the Act, the court gave a very clear statement of why it granted review on the merits. First, the contractor had “no plain, speedy, and adequate remedy, in the ordinary course of law.” (Code Civ. Proc., § 1086.) The court points out that if the contractor were forced to wait for a final judgment to challenge the ruling, it would lose the benefits of any stay it was entitled to pending compliance with prelitigation procedures, even if it prevailed on appeal. Second, the issue presented could escape review entirely if not heard in a writ proceeding, despite being “an issue of first impression, which is of interest to builders, home buyers, their attorneys, and others.” Though the court did not mention the fact, two building trade associations submitted Amicus briefs on behalf of the contractor, demonstrating the importance of the issue to a major industry.

Kudos to the court for being so straightforward in explaining why it reviewed the petition on the merits. Too often, writ opinions are ambiguous on the point.

Sixth District Court of Appeal offers the legislature some advice on amending the anti-SLAPP statute

232/365 - Smack!

A different kind of SLAP (Photo courtesy of Gabe via Compfight)

If you just lost your appeal, handled by attorneys at a high-powered law firm, with fees approaching – oh, heck, who knows, but three lawyers billing at a “BigLaw” firm have to run up a pretty hefty bill on a case potentially worth billions of dollars – you might not be happy with language in the introduction of the opinion characterizing your appeal as “utterly without merit” and noting that the court declined imposing sanctions only because the court did “not wish to further delay the long-overdue trial of the merits of [the] action.”

That’s exactly how the court opened its opinion in Hewlett-Packard Co. v. Oracle Corp., case no. H039507 (6th Dist. Aug. 27, 2015). If you guessed that the case is an appeal from the denial of an anti-SLAPP motion (Code Civ. Proc., § 425.16), give yourself a gold star. (Or maybe not — I mentioned anti-SLAPP in the title of this post, after all.)

The opinion is a good read if, like many, you believe that use of the anti-SLAPP statute has gotten out of hand. Indeed, the opinion cites another case’s reference to the “explosion of anti-SLAPP motions.” There’s simply too much in the opinion to try to summarize it here, so I’ll refer you to it for the nitty-gritty, and note just a few highlights.

On what does the Court of Appeal blame this explosion? The availability of immediate appeal when the motion is denied, that’s what:

A major reason for this explosion is that the statute rewards the filer of an unsuccessful anti-SLAPP motion with what one court has called a “free time-out” from further litigation in the trial court.The statute does this by entitling the unsuccessful movant to immediately appeal the denial of such a motion—even one like Oracle’s, which wholly lacks merit, attacks only a small part of the plaintiff’s case, and is heard nearly two years into the lawsuit, and on the day before a scheduled trial. Such an appeal automatically stays all further trial proceedings on causes of action “affected by the motion.” This means that however unsound an anti-SLAPP motion may be, it will typically stop the entire lawsuit dead in its tracks until an appellate court completes its review.

(Footnotes and citations omitted.)

The court argues that the anti-SLAPP “cure” is worse than the disease it was meant to address — the filing of meritless suits designed to chill participation in the public arena. “It is as if a city had decided to cure an illness afflicting a few of its residents by lacing the water supply with a chemical that would indeed cure those sufferers, but would sicken a larger number of previously healthy citizens.”

The opinion closes with the court’s recommendation for amendment of the anti-SLAPP statute:

In this regard, we offer the suggestion that one simple fix might substantially reduce the motivation to abuse the anti-SLAPP procedure: Limit the right to  interlocutory appeal to denials, and allow them only where the motion (1) is filed within the allotted 60 days, and (2) would—if granted—dispose of the entire action. Where either of those conditions is lacking, the motion can rarely if ever achieve any real saving of time or money, and an appeal can only have the opposite effect. Such an amendment would limit invocation of the statute to cases where it may serve its stated purpose and greatly reduce its tactical utility in many if not most of the situations where it is now being most sorely abused.

As a “BigLaw” refugee, my favorite part of the opinion is the court’s lament that sanctions for frivolous appeals are not a very good deterrent against abuse of the anti-SLAPP statute:

But a prompt dismissal, even of a frivolous appeal, is not always feasible. In this case, HP’s motion to dismiss the appeal was supported by four volumes of exhibits, which Oracle answered with another five volumes, with the result that the motion essentially duplicated the appeal itself. Top-drawer legal representation, such as both parties have engaged here, can obscure the core frivolousness of an appeal beneath layers of artful obfuscation which only the most painstaking examination can peel away. And where the stakes are high enough—as they certainly are here, judging from the multi-billion-dollar figures put forward by HP’s experts on damages—the threat or even the certain prospect of sanctions may not alter the economic calculus that makes an anti-SLAPP motion, and ensuing appeal, so attractive.

(Emphasis added.) Sounds like Maybe Oracle got its money’s worth after all.

One last thing. Remember how it looked like Oracle had dodged the bullet of having to pay Hewlett-Packard’s attorney fees, since the Court of Appeal declined to impose sanctions? If I were Oracle, I wouldn’t quite count on it.

Friday Appellate Humor

Here’s the graphic from a good New Yorker cartoon about appeals:


Click the image for the punchline

To avoid exceeding fair use, I’ve left off the punchline. Here’s a clue: there’s only one judge on the bench, so you know this cartoon depicts the trial court instead of the appellate court.

To see the punchline, click here or click the image. If you have any ideas for your own punchline, why not share them in the comments?

Some technical help for e-filing in the Court of Appeal

Screen Shot 2015-08-20 at 11.46.15 AMThis week, the Second District Court of Appeal published a terrific guide for creating electronic documents. (PDF link) The guide is broken down into a section on briefs and a section on appendices, and is meant as a technical guide, not a set of rules for filing. It is thus helpful regardless of the district your appeal is in.

The guide provides the nitty-gritty detailed steps, with illustrations, for creating, editing, and formatting documents for electronic filing, including instructions for safely and securely redacting information, adding bookmarks, and making scanned documents text-searchable, among other things. Unfortunately, instructions on hyperlinking have been deferred to a future edition.

I wouldn’t quite call it Electronic Filing for Dummies, though it will be helpful even for those who don’t know a PDF from a DOC and think Adobe Acrobat is a circus performer. I consider myself pretty tech-savvy on PDF creation and manipulation, and I still learned from it.

I think the guide will be particularly helpful for solos, who don’t always have the staff to handle the tech side of things and must rely on a DYI approach. However, the use of Adobe Acrobat, the PDF application used in the guide, can be cost-prohibitive for solos on a budget (though I believe it is now available through a monthly subscription). Keep in mind that there are alternative, less expensive PDF applications that can probably do everything you need for electronic filing, including PDF Pen for the Mac and Nitro Pro for the PC. (I have used both, but I am not endorsing either of them. Both offer free trials, so you can be sure they do what you need before purchasing.) I use Acrobat now because it came free with my Fujitsu ScanSnap scanner (an awesome piece of hardware).

Don’t forget that e-filing practices are not uniform throughout the state. Always check the particular procedures for your district. But this guide should help you no matter where you practice.

A hat tip to H. Thomas Watson of Horwitz & Levy for getting word of this out through the L. A. County Bar Association Appellate Courts Section listserv.

The Court of Appeal Time Machine – Interest Calculations on Modified Judgments


Still from The Time Machine (1960)

If you obtained a judgment against your former client for over $7.7 million, and had the court of appeal knock it down to around $1.7 million, and the trial court entered judgment in that reduced amount 14 months after the date of the original judgment, you would want interest to run on the judgment — even from the reduced amount — from the date of the original judgment, right? Of course you would. After all, 14 months of interest at a simple 10% on the $1.7 million amount is nearly $200,000. That’s not pocket change. (Well, not for me, anyway.)

But in Chodos v. Borman, case no. B260326 (2d Dist. August 18, 2015), the trial court ordered that interest on the judgment was to run only from the date of entry of the later judgment entered after the original appeal. That’s $200,000 up in smoke. Chodos, the judgment creditor, appealed.

And wins. The Court of Appeal points out that whether interest runs from the date of the original judgment or the date of the later judgment depends on whether its disposition in the original appeal amounted to a reversal of the judgment (in which case interest would run from the later judgment only) or merely a modification of the judgment (in which case the interest would run from the date of the original judgment).

Well, that should be an easy question, right? After all, the court knows what it did in the last appeal. But let’s just say it was not obvious to everyone. The trial court got it wrong.

As in many areas of the law, one must look past the form of the Court of Appeal’s prior opinion and identify its substance. The court had phrased its disposition in the prior appeal as a reversal:

The judgment is reversed and the matter is remanded to the trial court with instructions to enter a new judgment based on that portion of the special verdict form that awarded the attorney a $1.8 million lodestar amount based on the jury’s finding of a reasonable hourly rate of $1,000 and a reasonable number of hours expended on the two divorce cases and the Marvin action of 1,800. As it did in the original judgment, the trial court shall make adjustments to the $1.8 million award by adding the amount of $24,921 and deducting the amount of $107,000.

Despite the use of the word “reversed,” however, the disposition was really a mere modification of the judgment. It directed the trial court to enter a judgment in favor of the original prevailing party in a reduced amount, rather than returning the case to theatrical court for any further hearings on the amount of the judgment.

Thus, appellant is able to “return” to the date of the original judgment via the Court of Appeal Time Machine, and watch the interest accrue from that date.

The standard of review on appeal regarding enforceability of arbitration clauses

questions-1As I’ve mentioned before, the standard of review is not always clear. One sometimes has to “drill down” past the obvious, and the “abuse of discretion” standard is full of nuance. The parties’ briefs may even fight over which is the correct standard of review to apply, or the cases may be split on the issue. Sometimes, where the standard is in dispute, it doesn’t matter, because the outcome is the same under either standard.

There is no question as to what standard of review applies in yesterday’s decision in Carlson v. Home Team Pest Defense, Inc., case no. A142219 (1st Dist., August 17, 2015), but the case nonetheless has a lesson in careful application of the standard of review. The appeal was from an order denying a motion to compel arbitration. The court begins its discussion of the standard of review by announcing “There is no uniform standard of review for evaluating an order denying a motion to compel arbitration.”

Well, if there is no uniform standard, how do you decide what standard applies to your case? It’s hard to answer that question any more succinctly than the court, so I’ll let the court do it:

If the court’s order is based on a decision of fact, then we adopt a substantial evidence standard. [Citations.] Alternatively, if the court’s denial rests solely on a decision of law, then a de novo standard of review is employed.

In this case the trial court made factual findings based on at least some material disputed evidence. From those findings, the trial court concluded that Home’s Agreement was both procedurally and substantively unconscionable and should not be enforced. Accordingly, [t]o the extent there are material facts in dispute, we accept the trial court’s resolution of disputed facts when supported by substantial evidence; we presume the court found every fact and drew every permissible inference necessary to support its judgment.

(Citations and internal quotation marks omitted.)

Some easy examples are cited in one of the cases cited in Carlson. In Robertson v. Health Net of California, Inc. (2005) 132 Cal.App.4th 1419, the order denying the motion to compel arbitration was based on the trial court’s conclusion that the arbitration agreement violated a statute. Since this presented a purely legal question of statutory interpretation, review was de novo. Robertson cited Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416 as an example where review for substantial evidence was appropriate, because the order in that case was based on the trial court’s factual finding that the parties never reached agreement on arbitration.

Craig suggests that this analysis is apparently required whenever the validity of an arbitration clause is at issue on appeal, not just on appeals from orders denying a motion to compel arbitration. Craig was an appeal from a final judgment confirming an arbitration award after a motion to compel arbitration had been granted. Yet, Robertson cited to it as an example of how to apply the standard of review.

Mandatory E-filing comes to the Third District Court of Appeal

Details here. The court has adopted a new Local Rule 5 covering e-filing procedures, which become effective September 14. It looks like documents need to be filed through the proprietary TrueFiling system. If you have an appeal pending in the third district now, make sure you register for the e-filing system promptly.

How hanging out with the wrong crowd might doom your appeal of your criminal conviction

Don’t be too alarmed at the title of this post. I’m not saying that the Court of Appeal will take the character of your known friends into account when deciding your appeal. I’m referring to convictions arising out allegations that members of a small group participated in a crime together. If there is no direct evidence that a particular defendant did any particular act, might being one of the group on the scene be enough to convict?

That all depends on what the defendant did with the group and what the group did. In In re Kevin F. (People v. Kevin F.), case no. A140445 (1st Dist., August 10, 2015), the court found the evidence supported a robbery conviction despite the absence of any direct evidence that the defendant himself assaulted the victim or took any of his property.

The defendant (referred to as “Minor” in the opinion) was with a group of three or four men that struck up a conversation with the victim on a commuter train and then, while walking with the victim afterwards, jumped him and stole several items after they entered a dark alley. The victim could identify which in the group had grabbed and held him while the others punched, but he could not identify who landed which punches and could not even say with certainty that all of them participated in the assault. He could say only that he believed all of them participated because he was “being punched in different directions.” The victim testified that he heard all of the men speaking but he could not tell who said what. The victim pursued the group as they ran away. When he caught up to them, the man who had held the victim took a threatening posture and told the victim, “I have a knife,” after which all of the group ran off.  After the assault, the police drove the victim around the neighborhood to see if he recognized anyone. He identified Minor as part of the group that robbed him, but the police found no weapons or any of the victim’s property on Minor.

Now, you might be saying to yourself, how could Minor’s conviction be upheld if nobody testified that he actually took part in the assault or that he took any of the victim’s property? The answer starts with the standard of review:

“Our review of [Minor’s] substantial evidence claim is governed by the same standard applicable to adult criminal cases. [Citation.] ‘In reviewing the sufficiency of the evidence, we must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citation.]’ [Citation.] ‘ “[O]ur role on appeal is a limited one.” [Citation.] Under the substantial evidence rule, we must presume in support of the judgment the existence of every fact that the trier of fact could reasonably have deduced from the evidence. [Citation.] Thus, if the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment. [Citation.]’ [Citation.]” (In re V.V. (2011) 51 Cal.4th 1020, 1026.) Before the judgment of the trial court can be set aside for insufficiency of the evidence, “it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) An appellate court may not reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

The “substantial evidence” threshold doesn’t seem real hard to meet, does it? As you might expect, appeals challenging the sufficiency of the evidence to support the conviction are notoriously hard to win.

Here, the court finds there is substantial evidence supporting a conviction, because there is evidence that: Minor was in the group that the victim met on the train; Minor introduced himself to the victim; Minor was still with the group when it got off the train, and waited outside a liquor store while the victim purchased cigarettes; Minor was with the group when it entered the alley with the victim; the victim was punched from several directions and thus “believed” everyone in the group punched him; no one in the group told the others to stop; Minor fled with the group after the robbery. Thus, “[The victim’s] testimony that Minor was with the group before, during and after the attack, along with [his] testimony about the attack itself (i.e., the young men punched him from different directions, and no one left or tried to stop the others), allows a reasonable inference that Minor participated in the attack.”

Alternatively, the court finds that the evidence is sufficient to establish that Minor aided and abetted  the robbery. Even if the finder of fact did not believe that Minor actually struck the victim or took any of his property, the court finds that it is reasonable to believe that Minor acted as a lookout to facilitate the robbery because he was with the group the entire time and did not state any objection to the assault and robbery.

Now, it might be that Minor did not assault the victim or take any of his property. He might have wanted no part of the assault and robbery, perhaps even been too scared to move or say anything during the crime, and so frightened of being associated with it (or of having to testify against his friends) that he ran off with the group rather than wait around for the police. But such alternate views do not come into play in substantial evidence review. The question is not whether a factfinder could go wither way based on the evidence. The question is whether substantial evidence supports the conviction, even if a reasonable factfinder could go either way.

In short, when any crime is committed in a group — at least, when committed in a small group of 3 to 6 people — it probably won’t matter that there is no direct evidence that a particular defendant did any specific act. So long as there is evidence that the defendant was part of the group and remained with the group before, during and after the crime, and did not object during the crime, the court is likely to find substantial evidence to support the conviction.

Are records on appeal from the Los Angeles Superior Court about to get better?

LASCThe headline is not a dig at anyone at the Los Angeles Superior Court (LASC). It refers to the impact of the statewide court budget crunch, which led many courts to stop providing court reporters as a matter of course. Faced with having to engage court reporters on their own, some litigants were foregoing the expense, at risk of having records inadequate to prosecute their appeals.

As a result, parties are appealing decisions without the reporter’s transcript that they would have been able to order under the old system. That can spell trouble for an appeal.

Last Friday, the LASC announced that it is hiring court reporters. Actually, I can’t tell from the announcement whether they are looking for multiple reporters or just trying to fill a single vacant position. Here’s hoping that it’s the former, and that this is a sign of things to come.

SB 470 codifies Reid v. Google, Inc., provides that objections to summary judgment evidence are preserved for appeal

whichthat2On Monday, according to this article at The Recorder, Governor Brown signed SB 470, amending Code of Civil Procedure section 437c, which governs procedure for motions for summary judgment and summary adjudication. For appellate practitioners, the significance of the bill lies in its codification of Reid v. Google, Inc. (2010) 50 Cal.4th 512. Reid held that objections to evidence submitted in support of a motion for summary judgment are preserved for appeal even if the trial court fails to rule on the objections. Prior to Reid, the courts were split on whether such objections were preserved. I’m unaware of any lingering controversy over the issue since Reid, but it is nonetheless satisfying to see its holding codified.

Specifically, the bill adds the following language to the section 437c:

(q) In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.

Trial judges served with dozens of pages of objections are now explicitly excused from ruling on those that they deem immaterial. I think some judges have probably been doing this already with orders such as “Plaintiff’s objections 1-10 granted; all others denied,” especially in light of the holding in Reid, but it is good to see the burden explicitly lifted. Consider this excerpt from the first report on the bill from the Senate Judiciary Committee:

The report cites published opinions that illustrate the large number of objections made in summary judgment papers and the huge volume of motion papers in overall. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532 [“We recognize that it has become common practice for litigants to flood the trial courts with inconsequential written evidentiary objection, without focusing on those that are critical [footnote omitted].”]) The report specifically cites, as an example, the case of Nazir v. United Airlines, Inc. (2009) wherein “the moving papers in support of a summary judgment totaled 1,056 pages, plaintiff’s opposition was nearly three times as long and included 47 objections to evidence, and the defendant’s reply included 764 objections to evidence.” [Citation.]

If you are wondering about the graphic accompanying this post, here’s the explanation. It is in honor of the drafters of SB 470, for eliminating from section 437c three incorrect uses of the word “which.” Misuse of “that” and “which” (most commonly, the improper use of “which” in place of “that”) is a pet peeve of mine — not just in section 437c, but everywhere, including all other California codes, briefs, news media, correspondence and judicial decisions. Yet, I am sure I am guilty of it on occasion. Every once in a while, whether “which” or “that” is the correct word can be a close call, but SB 470 corrected some obvious mistakes. You can see the redline of the amended section 437c here.

Changes to the blog

wordpress-logo-stacked-rgb-2Regular readers will note a different look to the blog, which I implemented over the weekend. I actually liked the old look better, but my WordPress upgrade “broke” the Headway theme I used to create it. So, I’ve used a stock WordPress theme, which I was able to customize only in color and font choice. I’ll get back to a custom look once I figure out the new version of Headway, but that may be several months from now.

Upgrading my WordPress installation has significant “back end” benefits for me (most notably, better backup capabilities and comment spam prevention), but also has several benefits for readers. The broken commenting function has been restored, so readers can once again comment on my posts. Take advantage of it! (Look for the “Leave a comment” link to the right of the post categories underneath the social media icons that are under each post.) The social media icons are also new, and make it very easy for readers to share posts via LinkedIn, Twitter, Facebook, etc. Printing functionality is also greatly improved. Clicking the printer icon in the icon row below a post will create a printer-friendly version of the post.

Readers who currently subscribe via RSS or email should watch for an announcement later this month about changes to the subscription service. I will try to make that as seamless as possible.

Apparently, the law library of the future is going to be one big Kindle

The Journal of the Legal Writing Institute has just published a short essay by Professor Ronald E. Wheeler of Suffolk University Law School, titled “Is This the Law Library or an Episode of the Jetsons?

The big takeaway: the library is going to resemble a super-advanced Kindle and its patrons will look like they are parts of the Borg Collective:

It will include technologies that we know about and technologies that are beyond our imaginations. Things like retinal and holographic displays are predicted to be in use in the next 5 to 10 years. Lawyers, law professors, and other law library patrons will be browsing touchable, holographic shelves to select volumes instead of walking through the stacks of physical libraries. Intelligent,robotic, personal assistants will be providing clerical and other kinds of support to library researchers. Law library patrons won’t carry around smartphones or tablets. Instead they will work on skin-embedded screens with fingernail displays, brain mapping, brain uploading, and DNA storage.

I encourage you to click the article title above to read Professor Wheeler’s view about what this technology means for how we must adapt our teaching, practicing, and researching of the law. Some, he notes, will have to overcome their thinking that electronic resources are less “scholarly” than print resources.

I will admit to some trepidation over technology, including the use of electronic briefs in appeals and the use of laptops in classrooms, but I’m no Luddite. I have concerns about how technology, or at least the misuse of technology, might undermine legal practice and scholarship. Still, I must admit that a general resistance to change and plain old nostalgia influence my thinking. Will today’s younger generation, seemingly so eager to embrace change, have the same nostalgia for their own “good old days” technology? Even the lawyers trained on the technology Professor Wheeler describes might lament the more advanced, “newfangled” technology that displaces the technology they used at the beginnings of their careers.

By the way, I stole that Kindle joke from an exceptionally funny Portlandia skit. Since it’s Friday afternoon, and we probably all deserve a laugh, here it is:

Have a nice weekend, everyone.

Is your notice of appeal likely to generate settlement leverage?

Every so often, I get a prospective appellant who is convinced that filing his notice of appeal will intimidate his adversary, prompting him to “come to the table” to hammer out a deal.

Good luck with that.

It’s not that cases cannot settle on appeal. It’s that most of the time, the mere act of appealing or filing a writ petition does not generate much leverage because the odds are inherently against the success of the appeal. Consider that the reversal rate on appeals generally hovers between 20% and 25%. Would you be intimidated by those odds?

That said, cases do settle on appeal, and some factors in a given case can do a great deal to encourage both sides to settle. (I’ll cover some of those factors in a future post.) Recognizing that some parties, and especially respondents, are less likely to settle on appeal, some courts with mediation programs have required the parties to make some showing that the case has a chance of settling before the court will assign a mediator. Thus, even if the parties are willing to talk, they may not be able to take advantage of the free mediation services offered through the court, and will instead have to engage a private mediator.

For a good overview of the differences between trial-level mediation and appellate mediation, check out this older blog post from last year from mediator David Karp.  David’s blog is one of the Member Blogs of the Month at the TEN Networks Blog, and I’ve gotten to know David a little through that group. His post is spot-on, and offers some insight he’s gained from volunteering his mediation services to the Court of Appeal.

California Supreme Court invites your comment on proposed changes to publication rules involving cases accepted for review

I expect that in this age of electronic research, most lawyers have experienced the frustration of finding the “perfect” case, only to learn it is unpublished and therefore could not be cited as precedent. (See rule 8.1115(a), Cal. Rules of Court.) Even in the “old days,” when research was limited to hard copy books, you could still find the perfect cases whisked out from under you, either because it was later disapproved or, more frustratingly, had been accepted for review by the Supreme Court, which has the effect of automatically de-publishing the case. (See rule 8.1105(e)(1), Cal. Rules of Court.)

That may change. Yesterday, the Supreme Court posted for comment some proposed changes to this scheme.The upshot is that there would be a 180-degree change in the rule, so that published cases accepted for review by the Supreme Court would remain published, with a notation that the case has been accepted for review.

Where things get interesting is in the related issue of the precedential effect of such cases. If cases on review remain published, should they have the same precedential value they had prior to being accepted for review? That’s one proposal (but it also has a provision that the Supreme Court could explicitly limit the precedential value of the decision. The second proposal is that such decisions would not be binding and could be cited only for persuasive value.

The proposal generated quite a bit of buzz on the Los Angeles County Bar Association Appellate Courts Section listerv yesterday. The “if it ain’t broke, don’t fix it” caucus seemed to win the day.

Of course, not everyone agrees that the current system “ain’t broke.” There is an organization dedicated to advocacy for publication of all Court of Appeal opinions. Several years ago, a law firm even sued the Supreme Court over its publication rules.

The issue of the precedential value of cases accepted for review is of concern beyond the appellate community, of course. Published decisions of the Court of Appeal, regardless of the district in which the decision was rendered, are binding on trial courts statewide. Where there are conflicting appellate court decisions, a trial court is free to choose which it will apply.

Since conflicts among the Court of Appeal often generate review by the Supreme Court, trial courts are forced under the current rules not to rely on the more recent decision and treat the earlier one as binding. Someone on the listserv pointed out yesterday that this is unfair, and I tend to agree. After all, where review is granted because of a conflict between two cases, the Supreme Court is likely to disapprove one or the other of them rather than reconcile them. In other words, since the fate of both cases lies in the balance, why should one have greater precedential value than the other?

If you wish to offer the Supreme Court your comments on the proposal, you must do so by September 25, 2015.

Update: Horrendously embarrassing typo in headline fixed!

Don’t treat one superior court judge as the reviewing court for another

Writs and appeals are sometimes not the only routes (or even the preferred routes) to relief from an adverse order or judgment. Motions for reconsideration, post-trial motions for new trial or to vacate the judgment, and motions to set aside a judgment all have the possibility of getting you a “reversal” of sorts without ever leaving the superior court.

I’ve written before about how a superior court judge may change a prior interim ruling on his own motion, even when the decision to do so is triggered by a faulty motion for reconsideration. The chief limitation on this practice is that, in most cases, one judge on a superior court cannot reverse the ruling of another judge on the same superior court, at least so long as the original judge is still available, i.e., still on that court. In Marriage of Oliverez, case no. H040955 (6th Dist., July 27, 2015), the court confirms that this rule applies even when the case has been transferred to a new judge for trial.

The original judge in Oliverez had denied husband’s motion pursuant to Code of Civil Procedure section 664.6 to enforce a settlement. The case was then transferred (for reasons the court was unable to discern from the record) to another judge, before whom it was tried. In his tentative ruling, the second judge stated his intent to reconsider the first judge’s ruling on the settlement enforcement motion and later gave formal notice of its intent and afforded the parties an opportunity to brief the issue. The second judge then issued a statement of decision and final judgment, in which he vacated the prior order denying the motion and entered a judgment of dissolution that incorporated the terms of the settlement. Wife appealed.

The Court of Appeal covers the “narrow” exceptions to the general rule that one trial court judge may not reconsider and overrule an interim ruling of another trial judge:

“[W]here the judge who made the initial ruling is unavailable to reconsider the motion, a different judge may entertain the reconsideration motion.” Another exception is when the facts have changed or when the judge has considered further evidence and law. Additionally, a second judge may reverse a prior ruling of another judge if the record shows that it was based on inadvertence, mistake, or fraud. Mere disagreement, as here, with the prior trial judge’s ruling, however, is not enough to overturn that ruling.
(Citations omitted.)

Since the first trial judge in Oliveras was still on the bench, and it was apparent from the second judge’s ruling that he merely disagreed with the first judge on the original evidence and law, the judgment vacating the prior ruling did not fall within the exceptions.

Perhaps the husband saw the writing on the wall. He did not file a respondent’s brief in the Court of Appeal.

So, do you want your superior court judge to reconsider an earlier ruling based on the same facts and law? Knock yourself out with the same judge, but don’t try to turn another superior court judge into a one-judge appellate court.

The appellate angle in Marriage of Davis

Family law attorneys are buzzing this week about Monday’s unanimous Supreme Court decision in Marriage of Davis, case no. S215050 (July 20, 2015). The Metropolitan News-Enterprise summed up the holding this way: “A married person cannot be considered separated, and thus permitted to keep his or her earnings as separate property, while continuing to live with his or her spouse[.]” The court itself referred to its ruling as a “bright-line” rule.

Not so fast, folks. My friend Claudia Ribet has a column in today’s Daily Journal (link requires subscription) discussing the subtleties in the decision and concurring opinion, concluding that it may not even reduce litigation over the “separate and apart” issue very much.

I’ll leave that debate to the family law attorneys for now.

I, of course, am interested in what this decision teaches us about approaching appeals. The obvious lesson is this: an appellant needs to carefully consider the standard of review and, if at all possible, frame an issue on appeal subject to de novo review, in which the appellate court reviews the ruling without any deference to the trial court’s ruling or rationale, as if the case was being decided anew.

As the Supreme Court notes at the outset of its analysis, the date of separation “is normally a factual issue to be reviewed for substantial evidence.” However, the appellant raises an issue of statutory interpretation of Family Code section 771, subdivision(a), thus invoking the more favorable de novo standard of review, and prevails.

In this case, it probably was not too hard for appellant to realize how to latch onto an issue subject to de novo review, since the trial court’s decision went against a court of appeal opinion establishing separate residences a “threshold requirement” of living “separate and apart” for purposes of the statute. Voilà! De novo review of statutory interpretation.

It’s not always that easy. For more difficult cases, see this post and this one.

Congrats and thank you to the new TEN Networks Blog (and welcome, TEN members!)

The TEN Networks, Inc. launched its blog last week, and the editors graciously designated The California Blog of Appeal as one of its Member Blogs of the Month, along with with, the blog of Encino elder law attorney Brian Shepphard.

The TEN Networks is the umbrella organization for two business networking groups: The Esquire Network, a fantastic attorney group with a unique meeting structure, of which I am an enthusiastic member; and The Executive Network, which is open to other professionals. I encourage you to check them out.

Finally, how fortuitous (divine?) that TEN’s new blog would honor this one around the time I made my shameless plea for nominations for 2015 Legal Blog of the Year!

Federal Judge: Appellate Judges Know Nothing About Tech

Joel Spector ⓒ2013

Those words after the colon come straight from the headline at Bloomberg News, where you can treat yourself to a 40-minute interview with federal district judge Shira A. Scheindlin of the United States District Court for the Southern District of New York, conducted at the 2015 Big Law Business Summit.

The Bloomberg headline may exaggerate Judge Sheindlin’s position somewhat. Her comments on technology are directed mostly to the technology involved in discovery of electronically stored information (“ESI”).

Given that she is referring to ESI discovery, her view on appellate judges’ knowledge is neither shocking nor insulting. As in California sate courts, most discovery rulings are not immediately appealable. They may be reviewed on appeal from a final judgment (which I suspect is a somewhat are occurrence) or by mandamus, which is discretionary. Thus, federal appellate courts are unlikely to see many discovery cases at all, let alone cases involving disputes over ESI discovery. If federal appellate judges are unfamiliar with the technology, it is probably because it rarely comes into play before them.