April 24, 2013

When it comes to the anti-SLAPP statute, there’s no such thing as “just a little” criminal extortion

The courts’ application of California’s “anti-SLAPP statute” — Code of Civil Procedure section 425.16 — has been heavily criticized as being too broad. Section 425.16 authorizes a “special motion to strike” one or more causes of action in a complaint. A defendant succeeds on such a motion if he can demonstrate that (1) the suit is a SLAPP — i.e., a Strategic Lawsuit Against Public Participation — because the causes of action are based on free speech on a public issue or on petitioning of the government and (2) that the plaintiff is not likely to prevail in the action.

Witkin describes the type of lawsuits section 425.16 was designed to thwart:

Strategic Lawsuits Against Public Participation (SLAPP suits) are brought to obtain an economic advantage, not to vindicate a legally cognizable right. They typically seek damages that would be ruinous to the defendant. They pretend to be ordinary lawsuits, but are distinguishable in that they are generally meritless suits brought by large private interests to deter common citizens from exercising their political or legal rights or to punish them for doing so. Because winning is not a SLAPP plaintiff’s primary motivation, the traditional safeguards against meritless actions are inadequate

(5 Witkin, Cal. Procedure (5th ed. 2008), Pleading, § 1017, pp. 426-427 [citation omitted].)

Criticism of the anti-SLAPP statute usually centers around  the contention that it is much broader than needed to serve its purpose. That is, while many actions might technically fit within the statutory definition of a SLAPP, the same action might also be one genuinely brought to vindicate a legally cognizable right. To some, the statute seems almost limitless in this regard.

Consider Mendoza v. Hamzeh, case no. B239245 (2d. Dist., April 22, 2013). When Mendoza’s employer believed that Mendoza had committed fraud, conversion, and breaches of contract costing the employer in excess of $75,000, the employer’s lawyer (Hamzeh) sent a letter to Mendoza threatening to report him to multiple authorities unless Mendoza cooperated in the employer’s investigation and paid back all the damages disclosed by the investigation. Mendoza sued Hamzeh for civil extortion, intentional infliction of emotional distress and unfair business practices, and Hamzeh moved to strike under section 425.16, claiming that his threatening letter constituted a protected litigation communication under the anti-SLAPP statute.

Nice try. The Supreme Court — in Flatley v. Mauro (2006) 39 Cal.4th 299, a case Hamzeh did not even bother to cite in his motion — had already decided that criminal extortion is not covered by the anti-SLAPP statute. Confronted by Flatley, Hamzeh resorted to claiming that at least he wasn’t as bad as that no-good defendant in Flatley, who sent a whole lot of threatening communications. The gist of his argument was “Compared to that guy in Flatley, I’m a boy scout; surely, the protection of the anti-SLAPP statute should be extended to me.”

The court did not buy it. Hamzeh’s conduct constituted criminal extortion as a matter of law because it coupled a demand for payment with a threat to accuse Mendoza of a crime and report him to authorities. Once that threshold is reached, it doesn’t matter whether the extortion is mild or extreme, the anti-SLAPP statute simply does not afford any protection:

We do not read Flatley to mean the anti-SLAPP statute applies to some litigation communications which satisfy the criteria for criminal extortion if such communications are not particularly extreme or egregious. The rule must be a bright line rule. The antiSLAPP statute does not apply to litigation communications which constitute criminal extortion as a matter of law.
Extortion is extortion. The degree might make a difference in a criminal sentence or in damages in a civil suit, but when it comes to anti-SLAPP protection, degree does not matter at all.
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Posted in: Anti-SLAPP

April 8, 2013

Even disobedience of trial courts in other states can get your California appeal dismissed

Last Thursday’s decision in Stoltenberg v. Ampton Investments Inc., case no. B235731 (2d. Dist. April 4, 2013) demonstrates the hazards of being unable to stay enforcement of a money judgment against you while your appeal is pending . . . and how much trouble you can get in for going too far in resisting those enforcement efforts. How much trouble? Well, is having your appeal dismissed enough trouble for ya?

Ampton had the misfortune of losing at trial and having a judgment of more than $8 million dollars entered against it. Ampton appealed, but did not post a bond to stay enforcement of the judgment. When the plaintiffs registered the California judgment in Ampton’s home state of New York and then subpoenaed financial records, Ampton ignored the subpoena. Plaintiffs asked the New York trial court to find Ampton in contempt. Ampton escaped contempt but was ordered to respond to the subpoena. When Ampton refused to do so, Plaintiffs again sought a contempt finding against Ampton, and that time they got it: Ampton was ordered to pay $500 in sanctions and to comply with the subpoena within 30 days or face further sanctions.

By now, you would think that Ampton might finally accept the reality that its own failure to stay enforcement of the judgment pending appeal carries consequences that it would have to live with, and comply with the contempt order. But . . . that’s not what Ampton did. When Ampton failed to comply with the New York contempt order, Plaintiffs moved to dismiss Ampton’s California appeal, arguing that Ampton’s disobedience of the New York trial court contempt order was sufficient to invoke the “disentitlement doctrine.” After much procedural wrangling (which makes for interesting reading but is unnecessary to cover here), Plaintiffs succeeded in getting Ampton’s appeal dismissed.

Let’s start with the court’s description of the disentitlement doctrine (citations omitted):

An appellate court has the inherent power, under the “disentitlement doctrine,” to dismiss an appeal by a party that refuses to comply with a lower court order. As the Supreme Court observed . . . “A party to an action cannot, with right or reason, ask the aid and assistance of a court in hearing his demands while he stands in an attitude of contempt to legal orders and processes of the courts of this state.

We recently explained the equitable rationale underlying the doctrine. “‘Dismissal is not “a penalty imposed as a punishment for criminal contempt. It is an exercise of a state court‟s inherent power to use its processes to induce compliance” with a presumptively valid order’ . . .  Appellate disentitlement “is not a jurisdictional doctrine, but a discretionary tool that may be applied when thebalance of the equitable concerns make it a proper sanction . . . .‟ No formal judgment of contempt is required; an appellate court“may dismiss an appeal where there has been willful disobedience or obstructive tactics.” The doctrine “is based upon fundamental equity and is not to be frustrated by technicalities.”

The Court of Appeal has no problem finding the doctrine applicable here. After rejecting a few contentions that were squarely against precedent (why the heck were those arguments made?), the court addresses the one issue that had even a chance of succeeding: that Ampton’s appeal could not be dismissed under the disentitlement doctrine because Ampton disobeyed orders only of a court of foreign jurisdiction rather than orders from a California trial court.

It’s a valiant effort, but the Court of Appeal finds no reason to treat disobedience of foreign court orders any differently from those of California trial court for purposes of the disentitlement doctrine. The court first cites the “full faith and credit” clause of the federal constitution, but also notes a very practical reason for applying the disentitlement doctrine in these circumstances (citations and footnote omitted):

Had plaintiffs attempted to enforce the judgment in California by propounding postjudgment special interrogatories seeking defendants’ financial information, including information about assets defendants may have in New York, the disentitlement doctrine would have applied to any noncompliance with the California trial court‟s orders compelling responses to those interrogatories.  For purposes of the disentitlement doctrine, there is no meaningful distinction between New York trial court orders and California trial court orders related to enforcement of a California judgment. The orders of the New York court in issue were based solely on a California money judgment and were intended to aid in the enforcement of that judgment. Thus, by violating those orders, defendants are obstructing and frustrating the enforcement of a judgment of this state, while at the same time seeking relief concerned that judgment in this court. Under the well-established

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Posted in: Appellate Procedure, Dismissal, Stays & Supersedeas

March 21, 2013

What is the appellate “doghouse,” and why should you care?

No, I’m not talking about that imaginary place that your client puts you in if you lose the case. I’m talking about the mysterious “doghouse” references one sees when looking at the online docket of a California Supreme Court case. Take this snippet from the docket of a recently decided case, which shows that the record reached the Supreme Court on March 18, 2010:

The mysterious "doghouse"

Now, it seems rather obvious from the above image that a doghouse is some measure of the volume of the record. And, if you have petitioned the Supreme Court for review, you can guesstimate the size of a doghouse based on how many doghouses the record in your case fills.  But “doghouse” is a curious enough term in a court context that at a seminar I attended yesterday on the subject of handling large record appeals, panel member Justice Dennis Perluss (presiding justice for Division Seven of the Second District Court of Appeal) thought that even a roomful of appellate practitioners would benefit from actually seeing a doghouse, so he brought one with him.

It turns out that each doghouse — a fabric-covered cardboard folder of sorts, shaped roughly like a binder but without the rings — holds a maximum of about six inches of paper.

Not thrilling information, I know, so why should you care, besides the end of the mystery?

Well, many divisions in the Court of Appeal consider a case to be “big”  (sometimes referred to as “jumbo” among the court staff) if the record fills just three doghouses. That tells me that that the vast majority of appeals likely present a record smaller than that.  In fact, I would bet — I don’t have statistics — that there are more one-doghouse appeals than multiple-doghouse appeals.

Think about that. Consider that the fate of your appeal can depend on one or two  ”doghouses” — twelve inches or less of paper– even if you have spent years in litigation and built up a case file filling many file drawers. Now, consider the task of boiling that multiple-drawer file — or maybe even that multiple-cabinet file — to its essence. Buried somewhere in those drawers are the best issues for appeal and ideas for how to argue them. Then comes the task of winnowing those drawers full of paper down to those papers that are essential and most helpful to your client, yet still present a fair picture of the case so you cannot be accused of manipulating the record. That can be a daunting task, and one loathed by trial lawyers who live to argue to juries but hate all the paperwork.

I, on the other hand, love that challenge. It is what I and other appellate attorneys do all the time.

UPDATE (3/21/13): Ben Shatz at Southern California Appellate News has doghouse pictures.

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Posted in: Appellate Procedure, Record on Appeal

February 12, 2013

Don’t get snide on appeal

Snideness is never an attractive trait, but it is distressingly common in trial court. No offense to you trial lawyers out there, but I find snideness far less prevalent in appellate practice, and, on those occasions where it does raise its ugly head, the justices seem far more hostile to it than most trial judges are.

Which brings me to a 2009 case that I ran across today, Nazir v. United Airlines (2009) 178 Cal.App.4th 243, in which plaintiff’s counsel, apparently from a solo or small office, squared up against an employment law powerhouse and not only won, but got to see the powerhouse firm spanked by the Court of Appeal as it reversed the summary judgment for the defendant employer.

Here’s your hot tip of the day: Unless you want to invite the severest scrutiny of your own papers and trial counsel’s track record in the trial court, don’t start your brief like this:

Seemingly emboldened by [the trial court's description of the plaintiff's summary judgment opposition papers], defendants’ brief here begins this way:
“As in Macbeth’s soliloquy, Appellant’s Opening Brief (AOB), like his summary judgment opposition below, is full of ‘sound and fury, [but ultimately] signifying nothing.’ Despite filing an 1894 page(!) opposition separate statement, which the trial court found … in a manner deliberately calculated to obfuscate whether any ‘purportedly disputed facts were actually controverted by admissible evidence,’ the trial court properly granted summary judgment in this case. As with Nazir’s opposition statement, his AOB is ‘mostly verbiage, and utterly lacking in the identification and presentation of evidence demonstrating a disputed issue of fact.’ ”

Uh-oh. Pot, meet kettle:

Passing over whether such disparagement is effective advocacy, the “girth” of materials before the trial court began with defendants, whose 1056 pages of moving papers were in great part inappropriate, beginning with the motion itself.

The opinion goes on to lambaste the powerhouse firm for bringing a motion outside the scope of the statute and filing papers so out of compliance with court rules that they failed to adequately inform the plaintiff of the facts supporting the motion. Indeed, the court again takes an accusation (that plaintiff’s papers were designed to obfuscate) and applies it to the defendants:

The deficiencies in the motion pale in comparison to those in the separate statement. “Separate statements are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to expeditiously review complex motions for [summary adjudication] and summary judgment to determine quickly and efficiently *252 whether material facts are undisputed.” (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 335, 282 Cal.Rptr. 368.) The separate statement “provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.” (Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 74, 50 Cal.Rptr.3d 149.) That hardly describes defendants’ separate statement here.

Plaintiff’s counsel must have really enjoyed reading that opinion.

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Posted in: Appellate Advocacy, Briefing, Ethics, Legal Writing

November 30, 2012

Bad news for post-conviction indigent appellants: No right to Wende review

A California criminal defendant entitled to appellate counsel appointed by the state has one trick up his sleeve that defendants who hire their own counsel don’t: Wende review. When an appellant’s appointed counsel provides the Court of Appeal with a brief setting forth the substantive and procedural facts and informing the court that counsel has reviewed the record and can find no basis for challenging the judgment, the Court of Appeal must independently review the record for prejudicial error warranting reversal. This process is required in order to assure that the indigent appellant is not deprived of his constitutional right to counsel.

But is an indigent appellant with appointed counsel entitled to Wende review on appeal from a post-conviction judgment? No, says the court in People v. Serrano, case no. H036373 (6th Dist., Nov. 28, 2012). In this case of first impression, the appeal was from an order denying a motion to vacate the conviction, which the appellant sought in order to avoid deportation. His counsel filed a Wende brief, asking the Court of Appeal to review the record for error. The court notified appellant of his right to file his own argument, received nothing, and commenced its Wende review. During that review, they discovered that appellant had appealed his original conviction (and later dismissed that appeal), which triggered the Court of Appeal to ask for briefing on whether appellant had a right to Wende review in this appeal from a post-conviction judgment.

The first basis for the court’s ruling was the United States Supreme Court decision in Pennsylvania v. Finley (1987) 481 U.S. 551, in which it held that similar review in Pennsylvania was not required in appeals from post-conviction proceedings because the defendant had no constitutional right to counsel in those proceedings. That the state made a decision to provide counsel, even though it was not constitutionally required to do so, did not mean that the defendant was entitled to the court’s independent review. So, there was no federal basis for invoking Wende review in this case.

How about a state basis? Not there, either, says the court. Looking to state court decisions regarding the right to Wende review in other cases of state-appointed counsel (such as juvenile dependency and conservatorship proceedings), the court concluded that the California Supreme Court had relied on Finley “to restrict the availability of [Wende] review in a multitude of contexts.” In those decisions, says the court, the Supremes “held that due process does not mandate extending these procedures beyond the first appeal of right in a criminal prosecution.”

Nonetheless, those decisions were not criminal cases. Rather than rely on those cases without further analysis, the Court of Appeal went through the same three-part test used by the Supremes in the juvenile and conservatorship cases: “ ‘(1) the private interests at stake; (2) the state’s interests involved; and (3) the risk that the absence of the procedures in question will lead to an erroneous resolution of the appeal.’ [Citations.]”

The collateral attack on the judgment in this case came several years after the conviction and after the defendant had served his sentence. Analyzing the three factors, (1) the court found that appellant’s interest in avoiding deportation was very high: (2) the state’s interest in”securing a just appellate resolution, reducing procedural costs and burdens, and concluding the proceedings both fairly and expeditiously” outweighed the appellant’s interests, especially in “these times of decreasing judicial budgets and the resulting overall reduction in public access to justice.” Turning to the third factor, the likelihood of an erroneous resolution of the appeal, the court stated:

[D]efendant‟s conviction has long been final and his sentence served. Although, he chose to dismiss his first appeal of right, he could have obtained a review of his conviction had he so chosen. In each appeal, he has been afforded the right to appointed counsel, and each of those counsel were supervised by this district‟s appellate project. [Citation.] Given the multitude of protections already afforded the defendant, the risk of erroneous appellate resolution without Wende review for a collateral attack on the judgment is minute.

The court set forth a procedure for “all future criminal appeals arising from proceedings other than the first appeal of right, where appointed counsel finds no arguable issues.” (My emphasis.) But I think its analysis leaves wiggle room for arguing that Wende review may be applicable in appeals from certain post-conviction proceedings. After all, its analysis of the 3-pronged test would have been unnecessary if the California Supreme Court cases had established a firm rule. For example, how might this balancing differ if the courts were not in dire financial straits? Or if the appellant’s first appeal had been dismissed because of his counsel’s ineffective assistance?

These considerations may lead to Supreme Court review. After all, as the Court of Appeal noted, “the California Supreme Court has not specifically considered the availability of [Wende] review in a post-conviction collateral attack on a judgment.”

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Posted in: Appellate Procedure, Criminal Procedure, Standard of Review, Wende Review

November 14, 2012

Huge Error, No Prejudice

Too many people go into an appeal so certain that the trial court erred so obviously that reversal must result. This is rarely because the attorney doesn’t know that the error must have resulted in prejudice to warrant reversal, but because the attorney gives insufficient thought to the question of whether the error was genuinely prejudicial. As a result, the question o prejudice is not presented very well in the brief.

I’m not sure exactly what was going through the mind of the attorney representing the defendant/appellant in Twenty-Nine Palms Enterprises Corporation v. Bardos, case no. E051769 (Fourth Dist., Nov. 13, 2012). He might have had some very reasonable arguments that prejudice resulted from the error, and might even have presented a thorough argument in the appellant’s brief. For many, however, the  sheer magnitude of the asserted error — that the trial court abused its discretion by summarily sustaining 48 pages of objections to the appellant’s evidence submitted in opposition to a motion for summary judgment, without any reasoning in support of the ruling — might tempt some lawyers, and certainly many parties, into believing that there just had to be some resulting prejudice, without giving sufficient thought to the matter.

The Court of Appeal agrees that the trial court abused its discretion in summarily sustaining the objections, but finds there was no resulting prejudice. Even giving consideration to all of the evidence the appellant introduced below, the appellant still failed to raise a triable issue that would preclude entry of summary judgment.

Clients (and some attorneys) need to be reminded: it’s not error that will get you a reversal, it’s prejudicial error that will get you a reversal.

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Posted in: Standard of Review, Strategy

July 31, 2012

Fee-shifting on appeal from Berman Hearing is not applicable in dismissal for untimely appeal

I haven’t written about procedure on appeal from a “Berman hearing” — a wage claim heard by the Labor Commissioner — in a long time. Last Friday’s case of Arias v. Kardoulias, case no. B234263 (2d. Dist. July 27, 2012), gives me the opportunity to do so again because of the procedural question it raises, and also provides an opportunity to point out that not all appeals are the same.

You’ve read time and time again on this blog that appeals are very different from trials, but an appeal from a Berman hearing is not. An appeal from a Berman hearing is a trial, heard by the superior court (trial court) do novo – as if the hearing before the labor commissioner had never taken place. Indeed, a claimant can even add claims to the appeal that were never heard by the labor commissioner. This “new trial” posture provides the background for the court’s decision in Arias.

In Arias, the employee won an award before the labor commissioner. No doubt dissatisfied with the amount, she tried to appeal, but her appeal was dismissed due to the untimeliness of her notice of appeal.

At issue in the case was whether her employer was entitled to recover attorney fees and costs in obtaining dismissal appeal, pursuant to Labor Code section 98.2, subdivision (c), which provides:

If the party seeking review by filing an appeal to the superior court is unsuccessful in the appeal, the court shall determine the costs and reasonable attorney’s fees incurred by the other parties to the appeal, and assess that amount as a cost upon the party filing the appeal.   An employee is successful if the court awards an amount greater than zero.
The Court of Appeal finds that the employer has no right to fees under these circumstances. Although a timely appeal would have nullified the initial award in favor of the employee, here the employee still had an enforceable award of wages because the untimeliness of her appeal meant that her initial award was never nullified. Thus, even though she recovered nothing on the appeal, she still had a recovery that prevented her employer from recovering fees for the appeal.
As you might expect, the court was careful to point out that its decision applies only to jurisdictional dismissals, and leaves open the question of whether fee shifting would apply when a timely appeal is dismissed on another ground.
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Posted in: Appellate Jurisdiction, Jurisdiction

June 25, 2012

Attorney fee review standard isn’t always abuse of discretion

Appealing from an attorney fee award is usually a tough slog. Unless you are arguing a pure issue of law, such as whether any attorney fee-shifting statute applies to the case at all, the Court of Appeal usually reviews only for abuse of discretion. However, an important exception is noted in the recent case of Samantha C. v. State Department of Developmental Services, case no. B232649 (2d Dist., Div. 1, June 21, 2012).

In Samantha C., attorney fees were sought under the “private attorney general statute,” Code of Civil Procedure section 1021.5, in which plaintiffs who enforce an “an important right affecting the public interest” can recover attorney fees under certain conditions, namely:

(a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.

Plaintiff had originally lost her lawsuit seeking state services, but appealed the judgment. The Court of Appeal reversed in a published decision that construed certain statutory and regulatory language governing eligibility for services. Nonetheless, on remand, the trial court declined to award private attorney general attorney fees, finding that the benefits of the lawsuit were limited to the plaintiff.

Are you wondering, How can that be, when the published decision involved the interpretation of statutory language that applies to all such cases? If so, give yourself a gold star. The Court of Appeal finds that the precedent set by the statutory and regulatory construction in its first decision necessarily extend beyond plaintiff to all applicants, and that the actual size of that class of persons need not be proven:

Although our underlying decision was phrased in terms of substantial evidence, it rested on determinations of statutory and regulatory construction that were not specific only to Samantha.

***

Although the record does not reflect the number of individuals that might be directly benefited by our decision in Samantha C., nevertheless, by defining the class of benefited persons to include those in Samantha‘s position, the Legislature has demonstrated its determination that such a need exists, in a quantity that is of sufficient size to require its legislative protection.  In light of the Legislature‘s statement of purpose, we cannot justifiably conclude that such a group of potential claimants is nonexistent, or even minimal.

The point of this post, however, is not just the court’s decision, but how the Court of Appeal got there. Instead of deferring to the court’s discretion on the applicability of section 1021.5 in this case, the Court of Appeal found itself well situated to review applicability of section 1021.5 de novo, i.e., without any deference afforded to the trial court’s decision:

“A trial court‘s decision whether to award attorney fees under section 1021.5 is generally reviewed for abuse of discretion.” [Citation.] But where, as here, our published opinion provides the basis upon which attorney fees are sought, de novo or independent review is appropriate because we are in at least as good a position as the trial court to determine whether section 1021.5 fees should be awarded. [Citations.]

Not many appellants will be able to take advantage of this reasoning to obtain de novo review of their entitlement to fees.

There is one curious point to the decision. Although the Court of Appeal did not strongly emphasize it, implicit in its conclusion that the first appeal resulted in a benefit for a large class of persons is that its prior decision was a published one. Odd that its original opinion on the fee issue was not published.

By the way, if you’ve stumbled across this post looking for answers on attorney fees that are not addressed in this post, poke around at the California Attorney’s Fees blog, where they’re all attorney fees, all the time!
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Posted in: Attorney Fees, Standard of Review

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June 20, 2012

Just what are you appealing from, anyway?

Over at The Ninth Circuit Blog of Appeals, I posted today about an appellant who tried to use a federal appeal from a post-judgment order as a vehicle to attack the underlying judgment, which had been entered five years earlier. On the very same day, the Sixth District published Marriage of Sameer, case no. H035957 (6th Dist., June 19, 2012), in which the appellant tried a similar tactic in California state court. You won’t be shocked to learn it doesn’t work there, either.

In February 2008, the court entered a judgment on the stipulation of the parties, in which wife would receive spousal support with scheduled steps down in amount, ending completely on June 1, 2010, unless wife, prior to that date, filed a motion and should good cause why support should continue. The clear implication of the judgment and the parties’ stipulation onthe record was that within that time frame, wife was expected to complete her masters degree requirements and become self-supporting. When she pursued a doctorate instead of seeking employment in the field of her masters degree, she moved to modify the judgment, with the requisite change in circumstances being the “unrealized expectation” in the original judgment, i.e., that she had not become self-supporting as the original judgment contemplated.

Unrealized expectations. We all have a few of those, don’t we?

Wife in this case argued first that under the terms of the judgment, she was entitled to a reevaluation of spousal support regardless of whether there were changed circumstances. Wrong. Then she argued that the unrealized expectation of self-supporting status constituted the requisite changed circumstances. Unfortunately for her, she offered no evidence of her diligence to become self-supporting. So that argument is rejected, too.

Now we get to the similarity with the federal case. Wife also argued that the original stipulation and judgment were infirm because they failed to containing an explicit warning that she was expected to become self-supporting prior to the scheduled termination of support. Wife’s procedural error here is worth more than the footnote the court gave it, where it noted that because the argument was directed to the original judgment rather than the post-judgment order, “she is collaterally attacking the judgment,” so “this claim is not cognizable.”

The judgment and any post-judgment orders are not the same thing. An appeal from a post-judgment order alone isn’t going to get you anywhere with the judgment itself if it comes after the time to appeal from the underlying judgment has lapsed.

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Posted in: Appellate Jurisdiction, Briefing, Waiver of Issues

April 24, 2012

How to get sanctioned on appeal

The imposition of monetary sanctions on appeal is a rare occurrence . . . you almost have to work at it. If someone were actually trying to get tagged for many thousands of dollars for filing a frivolous appeal, they could learn a lot from Personal Court Reporters, Inc. v. Rand (April 20, 2012, 2nd Dist. case no. B229358). Below is your step-by-step guide to getting sanctioned on appeal.

1.  Base your appeal on an argument that goes against all precedent (apparently without any argument for a change in the law). This is a good start, but alone is not likely to get you sanctioned. The court recognizes:

Ordinarily, a court will not impose sanctions because an appeal is based on a creative argument with little hope of success.  “[C]ounsel must have the freedom to file appeals on their clients‟ behalf without the fear that an appellate court will second-guess their reasonable decisions.” [Citation.]

2.  Make sure that the adverse precedent includes your own prior case, in which the court rejected your nearly identical argument. Now you’re getting into dangerous territory. Says the court:

However, where a party bases an appeal on an argument that has been rejected and sanctioned in another trial court and affirmed on appeal, the principle of “once burned, twice shy” applies.  That is the case here.

***

Where, as here, a party appeals and merely repeats an argument that was soundly rejected by another appellate panel, we have little difficulty concluding that the party lacked good faith in pursuing the appeal.

3.  For good measure, first ignore your own prior case, then cite it in your reply brief  in support of your position, even though it runs against it. Why leave sanctions to chance? Virtually guaranty them with this icing on the cake!

[Appellants'] conduct is especially egregious because they failed to bring the prior case to our attention and did not address its holding after plaintiff cited it in its brief.

As the court noted in a footnote, however, appellants did not ignore their prior case completely:

Inexplicably, [appellants] cited the case in their reply brief as support for their position.

There you have it, your three-step foolproof guide to getting sanctioned on appeal. And not just against appellants’ counsel, but against the appellants’ themselves. Since the appellants themselves were attorneys, the Court of Appeal has a hard time believing they were merely relying on the advice of their counsel and did not realize the argument was frivolous.

UPDATE: Oh yeah, how’s this for irony? The lawyer representing the respondent in this collection action the trial court actually markets himself as the “evil attorney,” yet the other side is the one that gets sanctioned. (I can’t be sure this is the one, but here’s the evil attorney I found with Google.)

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Posted in: Sanctions

March 2, 2012

Submission to tentative ruling on motion does not forfeit arguments on appeal

For the procedural argument raised by the respondent in Mundy v. Lenc., no.  B227962 (2d. Dist. Feb. 29, 2012), I don’t know whether to give the respondent credit for creativity or jeers for an obviously wrong argument. Either way, she lost on the procedural point (but managed to defend on the merits partially in any event).

At issue was whether the appellant was barred from challenging the trial court’s orders on two motions, either under the doctrine of invited error or the doctrine of waiver,  because the appellant had submitted to the trial court’s tentative ruling on each motion. The Court of Appeal reaches — what is to me, at least — the obvious answer: No.

Appellant Mundy appealed from rulings on two motions. The first was the trial court’s denial of Mundy’s anti-SLAPP motion (Code Civ. Proc., § 425.16) on Lenc’s cross-complaint. The second was an order awarding Lenc attorney fees on the anti-SLAPP motion.

The Court of Appeal rejected Lenc’s argument that submission to the tentative ruling amounts to invited error. Since the doctrine of invited error rests on the notion that the litigant has misled the trial court, it could not apply here because Mundy made his positions known to the trial court in his motion memoranda. Later submission on a tentative ruling is not a misleading act because it is a neutral act that “conveys neither agreement nor disagreement with the analysis [in the court's tentative ruling].”

Lenc fared no better with her argument that submission on the tentative rulings amounted to a forfeiture of Mundy’s arguments on appeal. The primary reason the Court Aappeal rejected her argument is that the doctrine of forfeiture (or waiver) only applies to preclude an appellant from making an argument in the appellate court that he never raised in the trial court, and Mundy had indeed made the arguments in his motion memoranda. The court went further, however, analyzing two exceptions to the forfeiture doctrine, presumably to address arguments made by Mundy in response to the forfeiture argument, and found that both exceptions would apply in this case anyway.

The court found that the first exception — that a litigant need not raise in the trial court the insufficiency of the evidence to support a judgment — applied here because the orders appealed from are post-judgment orders and thus analogous to judgments, so Mundy had no obligation to object that the orders were unsupported by the evidence.

The court also found applicable a second exception — that futile objections are not waived on appeal — because any objection to the tentative would have been futile: “If Mundy’s attorney had told the trial court that he objected to the tentative rulings, the trial court would still have decided in favor of Lenc.” This reasoning strikes me as odd, given that the Court of Appeal reversed the attorney fee order in its entirety and reversed the order on the anti-SLAPP motion as to all but one of Lenc’s causes of action. Given that the trial court got almost everything wrong in its tentative, who’s to say that argument at the hearing would have been futile? That is, might not the attorney have been able to convince the trial court that it’s tentative rulings were wrong? Attorneys try to do so every day, and success is hardly unheard of. I think it would have been better for the court to rest on its principal reason for finding that the argument was not waived (i.e., that the arguments were made in the motion papers).

I joked a little at the start of this post about the unreasonableness of the respondent’s argument, but I can hardly fault her for raising it. Any colorable procedural argument that has the potential of affording the appellate court an escape from having to decide the appeal on the merits is usually too hard for a respondent to resist. And the language the Court of Appeal used to address it suggests that the justices found the argument creative, not frivolous. Creative arguments are how new law gets made.

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Posted in: Appellate Procedure, Waiver of Issues

December 15, 2011

Some basics about briefing

Yesterday’s decision in Provost v. Regents of the University of California, et al., case no. G043523, offers some reminders on briefing. For those of you completely new to this, consider the sequence of briefing before you read any further: the appealing party (“appellant”) files his opening brief, the party defending against the appeal (the “respondent”) files his respondent’s brief, and then the appellant, at his option, files a reply brief.

Let’s start with the appellant’s opening brief, which the court criticized for at least two deficiencies. The first was the appellant’s failure to present his arguments correctly:

[S]ome of plaintiff‟s arguments are not confined to the point raised in the heading, also a violation of court rules. (Cal. Rules of Court, rule 8.204(a)(1)(B).) And many of the same arguments are repeated throughout the brief under various headings. Although we address the issues raised in the headings, we do not consider all of the loose and disparate arguments that are not clearly set out in a heading and supported by reasoned legal argument.

Got that? Even if you actually make an argument, merely presenting it incorrectly can result in it being ignored by the court. I suspect this is rarely prejudicial to the appellant, however. An argument that doesn’t merit its own heading from the writer probably isn’t a good argument in any event. But if the court refuses even to consider it, you’ll never know.

Appellant’s other sin was even more basic:

Defendants argue the opening brief should be stricken, justifiably taking exception to plaintiff‟s failure to provide record references in violation of California Rules of Court, rule 8.204(a)(1)(C). . . . In addition, we will generally consider only those facts and arguments supported by adequate citations to the record.

Put yourself in the Justice’s shoes (or at least the shoes of their research attorneys) for a moment. In front of you is a brief referring to evidence and proceedings in the record without telling you where any of it actually is in that record, which may be hundreds (or conceivably thousands) of pages long. Are you going to try to hunt those pages down?

The court declined to strike the appellant’s opening brief, as respondents requested, demonstrating some of the patience the Court of Appeal is generally known for, but should not be taken advantage of: “Although we decline to strike the brief, this should not be interpreted as approval of plaintiff‟s violation of the appellate rules.”

So, let’s get to the problems with the Reply Brief.

Appellant’s first mistake was filing a reply brief in excess of the word limit, apparently without a motion for permission to do so. The court rejected the brief, and in its order directing the appellant to file a compliant reply brief, cited the second problem with it: “we reminded [appellant] he could not raise new issues or ‘rewrite his opening brief.’ ” Despite this warning, the appellant’s revised reply brief did it anyway:

In addition, we will not address arguments raised for the first time in the reply brief (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764-766) or documents in [appellant's] “Reply Appendix” filed with his reply brief because defendants lacked the opportunity to respond.

Appellant also tried with his reply brief to correct his failure to cite to the record in his opening brief:

In the reply brief, plaintiff supplies some record references although they are still incomplete, but this is too little, too late because defendants did not have the opportunity to respond.

You’d think from the name that the function of a reply brief — or at least its limited scope — would be obvious. The first definition that comes up for the word reply on dictionary.com is: “to make answer in words or writing; answer; respond[.]” (My emphasis.) As the opinion in Provost demonstrates, judicial treatment of reply briefs enforces this common sense notion, and will not allow an appellant to make arguments against which the respondent has no opportunity to defend.

The appellant in Provost lost sight of the proper purpose of a reply brief. Instead of responding to the arguments raised in respondent’s brief, the appellant apparently tried to correct defects in his opening brief. I can see how that might be tempting if you’re unfamiliar with the rules (or familiar with them, but desperate), but compounding initial briefing errors with more briefing errors didn’t get this appellant very far.

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Posted in: Appellate Procedure, Briefing

November 30, 2011

Highlights from an Evening with the Division 6 Justices

English: The courthouse of Division Six of the...

Second District, Division 6 Courthouse in Ventura

Picking up CLE credit is never as easy or fun as an evening with the justices of Division 6, which I and a few dozen other lawyers did last night at the courthouse for District 2, Division 6 in Ventura. The discussion was very informal, but there was still a lot to be learned — or in some cases, have confirmed.

Much of the evening was give-and-take. I tried to take detailed notes, but I can only write so fast. So, to avoid misquoting anyone, I’ll stick to paraphrasing and, for the most part, will not attribute comments to any particular person. My intent is not to deprive anyone of proper attribution, but to avoid mistakes. That said, here a few themes that dominated:

1. Don’t try the case in the Court of Appeal

Gee, you’ve never read that here before, have you?

Although I’ve heard justices say it before, it amazes me every time I hear it: the justices see a lawyer on virtually every calendar that treats oral argument as a second opportunity to try the case. Rather than concentrate on the applicable standard of review, the lawyer will argue the relative credibility of witnesses, try to impress with flowery language, or try to influence the justices with body language and demeanor. Such lawyers stick out like sore thumbs, and they are not  doing their clients any favors. Even lawyers from big firms full of Ivy League graduates can make these mistakes. (Obviously, not every trial attorney in the court of appeal does this.)

2. The justices go out of their way to give everyone a fair shake.

The justices are very aware that each lawyer represents a real client, whether a corporation or a living, breathing person with hopes and interests that will be affected by their decision. You don’t need to bring your injured client to court for them to realize that there is a real injured person’s future at stake in a personal injury appeal.

“Pro Pers” — people representing themselves — pose a special challenge. In my experience, they usually do a very poor job and are often motivated to appeal for reasons so personal to them that it is impossible to detach themselves from the case and do a good job, even if they have a reasonable handle on the standard of review. It would be easy for the justices to lose patience with these folks, but the justices realize that everyone deserves their day in court and that the appellate process itself, no matter how it comes out, can give litigants a sense of closure and knowing they’ve done everything they can.

3. The justices love their jobs

Really, really, love their jobs. They made it sound like such a happy place to work for everyone — attorneys, clerks, you name it — that if thay had left job applications on a table for people to grab on the way out, I’m sure the supply would have been exhausted.

4. The future of electronics in the Court of Appeal

When I go to a hearing in trial court, I usually have all of the papers and the most important authorities loaded into my iPad. This not only greatly reduces the amount of stuff I’ve got to carry, it can also let me navigate from point to point far more quickly than flipping through a bunch of paper documents to double check an argument or find something in the papers that is contrary to what my opposing counsel is saying. (Normally, you don’t want to be flipping around everywhere during a hearing, whether it’s through paper pages or digital ones. With the right degree of preparedness, you shouldn’t have to. But unanticipated time arise when it is helpful to do so.)

Justice Coffee asked if we (the attorneys in the audience) felt the court was paranoid for not allowing laptops, etc. in the courtroom. While recording with such devices is a concern, and much of the judiciary at large remains strongly opposed to more use of electronics and electronic access to the courtroom, there seems to be general consensus (if I can rely on the nodding of heads last night) that more electronics in the courtroom is an inevitability, and that the bar, not the bench, will drive change in that direction.

5. Congratulations and good luck to retiring Justice Paul Coffee

Justice Coffee will be retiring soon (I believe on January 31), so some of the evening was spent reminiscing. His career took him from San Jose to some “cow counties” to Ventura. I didn’t know until last night that he lives on a boat. Made me jealous! Even though he will soon become a landlubber, I’ll still wish him the best wishes that I, as a “boat school” graduate, can offer: fair winds and following seas, Justice Coffee!

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Posted in: Events, Judges

November 17, 2011

California Supremes keep Ninth Circuit Prop 8 appeal alive

The California Supreme Court’s much-anticipated opinion in Perry v. Brown was filed this morning. The court unanimously found that the Prop 8 proponents, who have a pending Ninth Circuit appeal from the federal district court decision finding the law unconstitutional, have standing to defend the law in court when the state attorney general refuses to do so. Answering certification of that question from the Ninth Circuit, the California Supreme Court concludes its long (61-page) decision with an unequivocal “yes”:

In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state‘s interest in the initiative‘s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.

As a result of the decision, Prop 8 proponents will be able to proceed with their appeal in the Ninth Circuit, where the proponents’ appeal has been hanging by a thread since the Ninth Circuit certified its question to the California Supreme Court last January, acknowledging that the appeal would have to be dismissed if the Prop 8 proponents lacked standing to defend the law.

Related post at Ninth Circuit Blog of Appeals.

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Posted in: California Supreme Court, Certified Questions, Ninth Circuit, Standing to Appeal

November 16, 2011

Bad reasons to appeal may be hiding the good one(s)

I’d love to have a nickel for every prospective client who has called me about appealing his case for the wrong reason. I don’t mean that he’s misidentified the best legal issue to raise, or even that his appeal has a very low probability of success. I mean reasons wholly apart from the merits of their case.

When one of these prospects calls, he doesn’t know he wants to appeal for the wrong reason. It’s up to me to deliver the bad news, usually.

You’re probably thinking that this is the part where I tell you not to call me if you’re motivated by any of these bad reasons. But the news isn’t always bad. (More about that below.) Bad reasons don’t mean you have no case. A bad reason just is never (or almost never) enough on its own.  So even if you’re motivated by a bad reason, you should get advice on whether you have a good reason to appeal or, perhaps, attack the judgment in a post-trial motion.

What are some of those bad reasons? A partial list includes:

  1. My attorney committed malpractice! (Maybe so, but . . . )
  2. I hate my ex! (This one comes up all the time in family law cases.)
  3. It’s a matter of principle! (Isn’t it always?)
  4. There was a conspiracy! (“My opponents’ attorney and the judge were always sharing knowing looks . . . “)
  5. The judge hated me! (Judges are overworked and underpaid; don’t take it personally.)
  6. My opponent lied! (This is where the prospective client gets a crash course from me in standards of review.)
  7. The judge believed my ex because she wore a short skirt and low-cut top when she testified! (Really.)
  8. The jury was a bunch of idiots! (Not helpful, even if true, unless . . . )

Notice how they all have exclamation points? The client who wants to appeal for one of these reasons is always emphatic about it, on a mission because anyone with half a brain can see that he is a victim of a gross miscarriage of justice. It’s just so obvious.

But again, just because your reason for wanting to appeal may not be good doesn’t necessarily mean that you have no valid ground to appeal. You can hate your trial attorney, hate your ex, be self-righteous, and be 100% correct that every single witness for the other side lied and all their documents were forgeries, and still have a good — or at least reasonable — case. Get advice. Once your appellate lawyer points out you’re concentrating on the wrong thing, you can start discussing the right things.

In future posts, I’ll expand on some of these bad reasons to appeal, and even talk about some rare exceptions where one or more of these reasons might actually be a good point to raise on appeal.

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Posted in: Appeals, Bad reasons to appeal, Clients

May 27, 2010

A different kind of “three strikes and you’re out”

A recent opinion from the court of appeal demonstrates that while redundancy is usually something to be avoided, sometimes it’s a good way to make a point.

[Plaintiff] persistently misstates the central issue in the case by insisting, here and in related appeals, that the question presented is whether a defendant charged with trade secret misappropriation “may escape liability” by establishing that it “does not comprehend the specific information comprising the trade secrets.” This is not an issue, let alone the chief issue, in these matters. The posited question may be answered in the negative-as indeed it must-without resolving any aspect of this case. It is a smokescreen, a red herring, a straw man.

(Silvaco Data Systems v. Intel Corp. (2010) 184 Cal.App.4th 210 [emphasis added].)
That’s three strikes. Or, really, all the same strike, stated three ways. This is another example of judges being able to get away with clever or sarcastic writing that most lawyers should probably avoid. Judges can get even more colorful. Yet, a lawyer takes a big chance in doing so, especially (in my view) in the court of appeal. So unfair!
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Posted in: Judges, Legal Writing

February 2, 2010

Real legal research on your iPhone

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If you are an iPhone-using lawyer, you really should subscribe to the iPhoneJD blog, where New Orleans attorney Jeff Richardson keeps you updated not only on specific legal uses for the iPhone, but on all things iPhone.

Yesterday, he reviewed Fastcase, an iPhone app for legal research, and the opening paragraph could hardly have been more glowing:

I will start this review with what probably belongs in my conclusion:  Every single lawyer using an iPhone should download the Fastcase app.  Moreover, the availability of the free Fastcase app is a compelling reason for any attorney not using an iPhone to purchase one today.  This app is that useful.

The rest of his review is very thorough.

The application itself is free, but the two subscription plans offered have an annual cost of  $700 and $1000. While that’s a heck of a lot less expensive than commercial services like Westlaw and Lexis, Fastcase will hardly replace either. It will be most useful for quick lookups on the go.

A lucky few won’t have to conduct any cost-benefit analysis. Seventeen bar associations (so far) offer Fastcase to their members free. That includes several statewide bar associations. Unfortunately, California is not among them, but a couple of Ninth Circuit states are: Arizona, Nevada and Oregon.

UPDATE (2/2/10): On second thought, this application might be good for a lot more than just the occasional quick lookup. On an iPad, it will be a lot more readable. Hmmm, up until know, I was pretty sure I wasn’t going to buy an iPad.

(Cross-posted at The Ninth Circuit Blog of Appeals.)

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Posted in: Legal Research

January 26, 2010

The “underground body of law” – the influence of unpublished opinions

There’s nothing quite so frustrating as finding the perfect case — factually and legally on “all fours” with yours, with a “slam dunk” holding — that has been depublished (or was never published). California Rules of Court, rule 8.1115(a), prohibits citation to opinions “not certified for publication or ordered published.” That “perfect” case might as well not exist if it’s not published.

Well, not quite. Such cases can be well worth finding because, in the absence of published cases, they can still be quite helpful in formulating argument and working logically through the issues. It is such influence in the absence of publication that leads presiding justice Kline, dissenting in People v. Moret, case no. A123591 (1st Dist. Dec. 28, 2009. modified on denial of rehearing Jan. 22, 2010), to cite the existence of an “underground body of law” as his principle justification for publication of Moret:

[Health and Safety Code section 11362.795] has, however, been interpreted and applied in a significant number of unpublished and therefore noncitable opinions. (Cal. Rules of Court, rule 8.1115.) Because published opinions construing the statute do not exist, and the unpublished opinions that do are easily obtained by interested lawyers and judges, the unpublished opinions may influence the strategy of counsel and the decisions of trial and perhaps even appellate courts. The existence for a long period of time of an underground body of law on the meaning of [Health and Safety Code] section 11362.795 (to which some members of this panel have admittedly contributed) is injudicious.

The cited code section concerns use of medical marijuana. I can’t be the only one who finds it a little ironic that the body of case law on it would be underground.

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Posted in: Stare Decisis, Uncategorized

January 21, 2010

Supreme Court denies review in Burlage v. Superior Court

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The Supreme Court denied review today in Burlage v. Superior Court, leaving intact the decision that, by speculation of some (including yours truly), will increase the number of legal challenges to arbitration decisions. I won’t go so far as to say that it will “open the floodgates,” but it certainly opens an avenue to judicial review that many would not have tried before the decision was published.

Expect to see many challenges that assert, though not in so many words, that the legal error that occurred in their case is grounds for vacating an award if the error led the arbitrator to exclude evidence. The challenge for these litigants will be to squeeze the history of their arbitration proceedings into the confines of Burlage, and its interpretation of Code of Civil Procedure section 1286.2, subdivision (a)(5). There will be plenty of fights over what those confines are.

The section headed “Uncertainty and a Little History” at the outset of Justice Gilbert’s opinion in Burlage certainly seemed to tee the case up for Supreme Court review:

We look to legal precedent in deciding cases. We believe the law is predictable and provides litigants and counsel a reasonable degree of certainty. True, but not always.

In 1991, we wrote what we thought was a routine arbitration opinion. (Moncharsh v. Heily & Blase (Apr. 2, 1991, B048936) [nonpub. opn.].) We relied on decades of precedent in our unpublished decision to affirm the arbitration award because no error appeared on the face of the award. In dicta, we noted that had the error appeared on the face of the award and created substantial prejudice, we would have reversed.

To our surprise, our Supreme Court granted review. Our holding was affirmed, but our dicta “reversed.” (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1.) Oh well, nobody’s perfect. Moncharsh held that judicial review of an arbitrator’s decision regarding questions of fact or law is extremely limited. Thus, even though an error of law appears on the face of an arbitration award and causes substantial injustice, it is not subject to judicial review in the absence of a limiting clause or as provided by statute. (Id. at p. 25.)

For the next decade, courts have wrestled with the question of when and under what circumstances judicial review of an arbitration award is proper.

Though we have no Supreme Court review this time, we’re about to witness another round of wrestling. As more and more courts consider the question, significant judicial discord may develop, and Justices Baxter and Corrigan — the two justices who were in favor of review — might sway their colleagues to grant review in a similar case.

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Posted in: ADR, Arbitration

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January 18, 2010

Judicial Council meeting this week to discuss impact of court closures

A Friday afternoon press release (PDF) from the Administrative Office of the Courts announced that this Wednesday’s meeting of the Judicial Council will include a review of  the impact of the court closure policy instituted last September. From the agenda:

Based on survey responses from the Supreme Court, Courts of Appeal, 54 superior courts, and 275 justice system partners, the Administrative Office of the Courts (AOC) recommends continuing the one-day-per-month judicial branch closures through June 2010, as directed at the July 29, 2009, Judicial Council meeting. The closures provide a viable method in the short term to absorb the significant budget reductions imposed on the branch, although they are far from a perfect tool and have unquestionably affected court operations and the smooth and effective delivery of justice. The AOC further recommends that the council reaffirm its commitment to keep courts open and accessible to the public and to advocate for sufficient resources to avoid the need for court closures in fiscal year 2010–2011 and direct the Administrative Director of the Courts, in consultation with branch leaders to develop recommendations and guidelines for limited closures for 2010– 2011 should sufficient resources not be provided.

The agenda references this 28-page report (PDF) from the AOC. The meeting will be audiocast live at this link.

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Posted in: California Courts

January 15, 2010

Citations of the future

Duke University professor Joan A. Magat has an article up at SSRN suggesting changes in footnote use in academic legal writing, but the future she predicts for legal journals in “Bottom Heavy: Legal Footnotes” may be the future of all legal authority:

No more paper: just electronic journals with links to sources. That’s what’s ahead. All this current, Bluebook-inspired preoccupation with small caps and spacing initials and the like will go the way of the mastodon. One of these days, we’ll have just URLs. They’ll have to be correct, or they won’t work. And they’ll have to last.

If you’re an academic writer, you should check out the article. Here’s the abstract at SSRN, where you can access the complete article after signing up for a free account:

For decades, legal footnotes have been the deserving target of both ample criticism and self-mockery. Apart from their complaints as to footnotes’ mere existence, most critics draw a bead on the ballooning of footnote content. Some journal editors, aspiring to respond to this sound theme, hopefully inform their authors of a preference for “light footnoting.” But where does an author begin to trim, and what editor has the audacity to slash what the author (or her research assistant) has so laboriously compiled below the line? Changing our footnote habits is about benefits and costs. To gain the former, we must ante up. If criticism began the round of bidding, this article modestly raises the stakes, suggesting a rule of reason that might govern the author’s, the editor’s, and the reader’s expectations for footnotes. A gamble, perhaps, but one that might be worth taking.

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Posted in: Legal Research, Legal Technology, Legal Writing, Uncategorized

January 13, 2010

Ineffective assistance of counsel in advising waiver of right to claim ineffective assistance of counsel

When a plea agreement includes a waiver of rights to appeal, claim ineffective assistance of counsel, and to move to withdraw the plea, can it logically be enforced to preclude a claim of ineffective assistance of counsel in the advice to enter into the agreement? Last week, in People v. Orozco, case no. F056712, (5th Dist. Ja. 8, 2010), the court of appeal joins several federal courts in reaching the only sensible answer: of course not.

To hold such a waiver enforceable “would deprive a defendant of the ‘opportunity to assert his Sixth Amendment right to counsel where he had accepted the waiver in reliance on delinquent representation.’ ” [Citation.]

We agree with the federal authorities and find justice dictates that a claim of ineffective assistance of counsel in connection with the making of the waiver agreement cannot be barred by the agreement that is the product of the alleged ineffectiveness.

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Posted in: Plea Bargains, Uncategorized

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January 12, 2010

“Octa-Mom” wins one in court

“Octa-mom” Nadya Suleman became an object of derision when, after fertility-treatment-induced birth to octuplets, people learned she was a cash-strapped single mother who already had six children at home. But it’s her adversary that comes into ridicule in Friday’s decision in Suleman v. Superior Court , case no. G042509 (4th Dist. Jan. 8, 2010).

Paul Peterson filed a petition to appoint a guardian to handle financial affairs for the octuplets. (Peterson asserted that his non-profit organization wanted to ensure that financial compensation received from photos or video of the octuplets was preserved for their majority, which explains why no guardianship was sought for the remaining children.) Suleman moved to dismiss, and petitioned for a writ of mandate after the trial court denied her motion. As unsympathetic a person as Suleman may have been in the press, Peterson looks pretty bad, too:

This is an unprecedented, meritless effort by a stranger to a family to seek appointment of a guardian of the estates of the minor children. The petition‟s allegations are insufficient to infringe on a parent‟s civil rights or to rebut the presumption under California law that a parent is competent to manage the finances of his or her children. There is nothing in the petition that shows that the best interests of the children in the management of their finances are not being served by Suleman.

I always liked the joke “It’s on the internet, so it must be true!” Peterson learns that a court petition is not the time to try to take that whimsical expression seriously:

What information do we have before us? Petersen is not a relative under section 1510, subdivision (a). Petersen has never met and never had any contact with Suleman, her children, or any member of her family. All of the information presented in the petition for appointment of a guardian has come from television or the Internet. Petersen has provided no documentary evidence (much less admissible evidence) that raises a reasonable inference of wrongdoing. The information provided can be summed up as follows: Suleman and her children have appeared on television and the Internet, presumably in exchange for money. No evidence of financial mismanagement on the part of Suleman is offered. Petersen admits he does not know whether Suleman has taken the appropriate steps to ensure that 15 percent of each child‟s portion of any earnings has been placed into a [statutorily mandated] Coogan Trust Account.

(My emphasis, footnote omitted.) Not only does Suleman get the guardianship petition dismissed, she also succeeds in stopping an investigation ordered by the trial court into her family’s finances.

The average person following this on the news probably wrote off Suleman’s chances of prevailing. Lawyers not paying close attention may also have rolled their eyes, in light of the overwhelming odds against having a writ petition heard on the merits, let alone winning. However, Suleman presented a statutory interpretation issue of first impression of great importance — who has standing as “another person on behalf of the minor” under Probate Code section 1510, subdivision (a) to bring a guardianship petition — that not only caught the court’s eye, but actually resulted in a win.

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Posted in: Mandamus/Prohibition, Media and the Law, Probate, Uncategorized

January 11, 2010

New, and hopefully improved, design

Regular readers will note the blog’s new design, which debuts today. When I started my new blog, The Ninth Circuit Blog of Appeals, I utilized a customizable theme that emphasizes search engine optimization. I’ve switched over to the same theme here for the SEO benefits and in order to make the designs of the two blogs similar enough to suggest a relationship.

I still have lots of touch-up work to do, but I decided it was better to reopen the blog to access today as scheduled rather than spend another day or two tinkering without substantive updates. So, please bear with me as I clean up around here over the coming weeks.

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Posted in: Blogging

January 11, 2010

Video coverage of Prop 8 trial enjoined, at least temporarily

I have a post up at The Ninth Circuit Blog of Appeals on the latest development in the ongoing battle over video coverage of the Prop 8 trial.

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Posted in: Media and the Law

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January 6, 2010

Don’t jump to conclusions on the standard of review

“This is one of those cases where some exposition on the topic of the standard of review is necessary to sort out the case.” When a court begins its analysis with that sentence, as the court in Le v. Pham, case no. G041473 (4th Dist. Jan. 6, 2010) did yesterday, you know the opinion is going to be an interesting read — if you’re an appellate attorney, anyway.

Le is a great study in why it is important to think carefully about the appropriate standard of review. Respondents, who had prevailed against a cross-complaint against them, probably thought they had this case in the bag, but because the standard of review was not what they thought it was, judgment on the cross-complaint was reversed.

The Les, a married couple, together owned 50% of the stock in a pharmacy corporation; Pham owned the other 50%. The bylaws obligated the Les to give notice of any proposed sale of their shares to a third party and gave Pham a right of first refusal, but failed to specify a time in which to exercise it. The bylaws also dictated that any sale below the price in the notice was void.

The Les sold their shares to third parties, the Hoangs. Pham, contending the sale was in violation of her right of first refusal and was void because the sale price was below that provided in the Les’ notice, refused to recognize Paul Hoang as a shareholder and would not grant him access to the corporate records or seat him as a director. Paul Hoang did not file a change of ownership form with the California Board of Pharmacy. As a result, the board closed the pharmacy for approximately three month starting in March 2007 and kept it on probation through the end of that year.

The Les and Hoangs sued Pham, contending the sale was valid and Pham’s refusal to give them access to the corporate records was wrongful, that Pham had failed to file proper forms with the state, and that she had converted corporate funds to her own use. Pham cross-claimed, alleging breach of fiduciary duty against the Les and fraud against Paul Haong (based on holding himself out as a shareholder). The complaint and cross-complaint were both alleged derivatively on behalf of the corporation as well.

The case was tried to the court, and the court of appeal summarized the result thus:

After a bench trial, Pham prevailed on the Les’ and Hoangs’ complaint, while the Les and Hoangs prevailed on Pham’s cross-complaint. That is, the court, in its statement of decision, ruled that the Les‟ attempted transfer of shares to the Hoangs was null and void because it did not comply with the corporate bylaws. It was obvious, after all, that the Les had attempted to sell the shares to the Hoangs for a better price ($24,000 as distinct from $70,000) and on better terms (installments rather than cash) than had been offered Pham in the notice of intent to sell.

As to Pham’s (and the corporation’s) cross-complaint against the Les for breach of fiduciary duty, the statement of decision concluded that they had “failed to carry their burden of proof.” The trial judge wrote: “Generally speaking, at trial, little evidence was adduced in support of the cross-complaint.” She also wrote, however, that Pham “did not have an adequate opportunity to exercise her right of first refusal” given that Dieu-Hoa Le had “unilaterally demanded that the written offer be made within 10 days.”

Read that carefully. That those facts are undisputed is important.

It’s tough to summarize the point regarding the standard of review any more concisely than the court has already done, so I’ll simply provide the following (and quite long) excerpt. As you read it, I think the lesson will become clear: don’t jump to conclusions on the standard of review.

The obvious starting point is that, since Pham and the corporation are challenging a judgment after a court trial, they initially face the formidable substantial evidence standard of review.

The substantial evidence standard has two components, and both work generally against appellants: First, all conflicts in the evidence must be resolved in favor of the prevailing party; second, all reasonable inferences from the evidence (all conflicts already having been properly resolved) must be drawn in favor of the prevailing party. (See Eisenberg, et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group (2009) ¶¶ 8:38, 8:60, pp. 8-18, 8-8-26.)

We should note, then, that Pham and the corporation are necessarily in the position of saying that the evidence, despite all the resolution of conflicts and having all reasonable inferences drawn against them, nevertheless compels a judgment in their favor, on the two issues they have raised in this appeal: The Les’ fiduciary duty and Paul Hoang’s alleged fraud. Not surprisingly, the brief filed on behalf of the Les and Hoang lavishes attention on the substantial evidence rule. The Les and Hoang are most certainly correct that if we find any substantial evidence obviating either (a) any fraud on Hoang’s part or (b) the existence of a fiduciary duty, or the subsequent breach of a fiduciary duty if there is one, we must affirm the judgment.

However, if one digs a little deeper — for example, by continuing to read the remainder of the respondent’s brief — it turns out that the substantial evidence rule is actually irrelevant in the context of the issue of whether the Les’ owed a fiduciary duty as shareholders to Pham, and whether any such duty was breached. There is no conflict as to the facts of ownership of the corporation: 50-50. There is no conflict in the evidence regarding the sale (or, better, attempted sale) of the Les’ half of the corporation to the Hoangs. And there is no conflict in the evidence as regards the consequences of that attempted sale, namely a cease and desist order from the California State Board of Pharmacy closing the business for about three months beginning in March 2007.

Thus, the Les’ actual argument on the fiduciary duty issue presented in their brief turns out not to be a factual one at all (e.g., the Les don’t say: “there was evidence that we didn’t really own any shares at all, or that we offered our shares to Pham at the same price and terms as we offered to the Hoangs”), but a legal one: The Les assert that by virtue of the undisputed fact that they were 50-percent shareholders in the corporation — that is, were not majority stockholders — they had no fiduciary duties to the corporation or to the other 50-percent shareholder. Of course, when the facts are undisputed and the question on appeal is wholly a legal issue, the proper standard of review is independent review. (E.g., People v. Superior Court (2007) 41 Cal.4th 1, 7 (Decker) [because dismissal of attempted murder charges “was based on undisputed facts,” it constituted “a legal conclusion subject to independent review on appeal”].)The trial court‟s comments in its statement of decision, then, that (1) “at trial, little evidence was adduced in support of the cross-complaint” and (2) Pham and the corporation had “failed to carry their burden of proof,” while understandable, miss the mark in analyzing the problem of whether the Les had a fiduciary duty toward Pham as regards the bylaws‟ right-of-first-refusal provision.

The comments were quite understandable if one thinks about how the trial judge experienced the unfolding of the trial. Precisely because the relevant facts involving the attempted sale were undisputed, most of them were presented in the context of the plaintiffs’ (the Les and Hoang) case in chief seeking to validate the sale from the Les to Hoang. The trial was ninety percent over, in terms of counting pages in the reporter’s transcript, when the Les and Hoang rested their case. That case in chief included, for example, calling Pham herself as an hostile witness, and the only witness that Pham and the corporation called after the plaintiffs had rested was the state Board of Pharmacy inspector, who explained why the corporation had had to close down for about three months in 2007. So we can understand that it might not have seemed like Pham and the corporation were producing much evidence on their cross-complaint at trial. Most of the relevant (and undisputed) facts bearing on the legal question of whether the Les had a fiduciary duty and, if so, violated it, had been brought out in the plaintiffs’ case in chief. But just because the undisputed evidence favoring the cross-complaint also happened to come out on the plaintiffs’ case in chief does not mean it was not available to support the cross-complaint.

I don’t find anything surprising about the court’s analysis. But I’m not so ready to call the trial judge’s comments “understandable if one thinks about  the way the trial judge experienced the unfolding of the trial.” Were there no closing arguments or briefs? What about input from the parties regarding the statement of decision? (See Code of Civil Procedure section 632.)

The uncontradicted nature of the evidence seems pretty clear to me. Then again, hindsight is 20/20, isn’t it?

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Posted in: Standard of Review

January 4, 2010

Now in session: The Ninth Circuit Blog of Appeals!

The Ninth Circuit

Just before Christmas, I announced that this blog would be spinning off a new blog, The Ninth Circuit Blog of Appeals, with the start of the new year. I’m pleased to announce that The Ninth Circuit Blog of Appeals is now in session. This is the follow-up post I promised about how I reached the decision to split this blog and my plans for managing both of them.

First, an explanation as to why I am resuming blogging on a more regular basis. As regular readers recall, my blogging frequency dropped off dramatically in 2009. I posted from time to time, but not with the regularity and enthusiasm with which

I started this blog in spring of 2007. (Then again, I’m not sure any solo blogger could have kept up that pace for long.)

A funny thing happened while I was away from this blog.

Traffic doubled. People called and hired me after finding me through the blog. And, while I was worried that the drop off in my blogging would eventually catch up to me, and that I would be passed by other California appellate bloggers, it turns out many of them — the practicing attorneys, anyway — blogged even less than I did!

Now, all of that might suggest the whimsical view that infrequent blogging is the key to success! But I don’t look at it that way. I see the past year as evidence that renewed and consistent blogging will bring even more traffic and help reestablish my blogging niche. That way, I won’t be embarrassed at the state of the blog the next time I get mentioned at Lexblog.

Why spin off The Ninth Circuit Blog of Appeals?

There was one thing that was missing, or at least very infrequent, about the traffic generated by this blog: inquiries about

Ninth Circuit appeals. Virtually all my inquiries were about California state court appeals. When I did get an out-of-state inquiry, it was often for an appeal in some state court where I am not admitted to practice, or an appeal in another federal circuit.

That made me think that federal subject matter posted on this blog is hidden from the typical internet researcher. Who is going to look for information about federal appeals on a blog called The Calfornia Blog of Appeal, even if it shows up in their search results?

The new blog is an effort to reach those readers. It seems to me that someone with a federal case in Arizona who turns up a result on The Ninth Circuit Blog of Appeals is far more likely to look at it than at the identical content on The California Blog of Appeal, especially if that someone is a lawyer familiar with the terminology. (A fair number of my inquiries come from lawyers rather than their clients.) But even a party with little knowledge of the court system is likely to have learned from his trial lawyer that his appeal is to the Ninth Circuit.

I’ve taken steps (amateur ones) to ”SEO” the new blog. That’s “search engine optimization” for you non-techies. And its designed to draw ninth circuit traffic like flies. I hope.

What should regular readers expect here?

The state-federal division between the blogs isn’t as simple as it sounds. You lawyers out there can think of it as the Erie

doctrine for blogs. The question I face is similar to that faced by the Erie court both in the nature of the split and the difficulty of answering the question: when does a post belong on the state court blog The California Blog of Appeal and when does it belong on the federal court blog The Ninth Circuit Blog of Appeals?

Well, the easy answer is that posts about federal cases go on  The Ninth Circuit Blog of Appeals and those about California state court cases go on The California Blog of Appeal. The problem is, that is the easy answer, not necessarily a good one. Too many posts transcend jurisdiction.

For starters, what about cases that affect the law in both court systems? For example, a case where the Ninth Circuit certifies a question to the California Supreme Court? Or a United States Supreme Court case regarding constitutional criminal procedure that governs all criminal cases, state or federal?

In addition, I’ve blogged about many things besides developing case law. Legal humor, legal technology, legal education , and even law practice and marketing are occasional topics here. I blog about legal writing and legal research quite a bit. I even blog about blogging and note the occasional oddity.

So, I’ve been pondering for several weeks how to divide these seemingly transcendant posts between the blogs, and I’ve come up with a hard and fast rule: I’m going to wing it. But I’m going to wing it with an eye towards taking care of my regular readers. I may cross-post some posts at both blogs. I may write a summary on one blog that links to the full post on the other. I ma

y try to put a slightly different spin on the same post at the respective blogs. The lighter and more personal posts are likely to be posted here. Until I establish some kind of rhythm, my principle concern will be not to make the transition too jarring for my regular visitors. My apologies in advance for any inconvenience.

There is, however, one way to make sure you don’t miss anything. Subscribe to both RSS feeds! (State and Federal.)

So, go read my introductory post at The Ninth Circuit Blog of Appeals, poke around a bit, and feel free to offer any suggestions for improvement.

Finally, within the next week or so I will be converting The California Blog of Appeal to a new theme that complements the theme at The Ninth Circuit Blog of Appeals and will allow me to implement better search engine optimization. My target date for the new theme is Monday, January 11.  You may find this blog down occasionally until you see it with the new theme

.

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Posted in: Announcements, Blogging

January 4, 2010

Felony-misdemeanor preemption analysis yields odd result

Most of the time, lawyers encounter preemption issues in the context of conflicts between federal and state law or between local and state law.  But horizontal preemption is also possible. Even different criminal statutes in the same state can trigger preemption issues, as in People v. Murphy, case no. E046742 ( 4th Dist. Dec. 28, 2009):

Defendant contends the Legislature enacted misdemeanor statutes, which more specifically defined the felony offense for which she was convicted in count 1, subsequent to the latter’s enactment; thus, she asserts her felony conviction is preempted and must be reversed.

Specifically, the defendant contended that her conviction for procuring or offering false information for filing in a pubic office (Pen. Code, § 115, subd. (a)), with which she was charged for submitting a false stolen vehicle report to the California Highway Patrol, was preempted by Vehicle Code section 20 (false statement or knowing concealment of any material fact in any document filed with the Department of Motor Vehicles or the Department of the California Highway Patrol) and Vehicle Code section 10501 (filing of false or fraudulent report of theft of a vehicle with any law enforcement agency with intent to deceive). At first glance, it looks like a pretty good argument, but it doesn’t withstand the preemption test.

“The preemption doctrine provides that a prosecution under a general criminal statute with a greater punishment is prohibited if the Legislature enacted a specific statute covering the same conduct and intended that the specific statute would apply exclusively to the charged conduct. [Citations.] To determine the applicability of this doctrine in a particular case, the courts have developed two alternative tests. Under these tests, a prosecution under the general statute is prohibited if: (1) “each element of the general statute corresponds to an element on the face of the [specific] statute‟; or (2) “it appears from the statutory context that a violation of the [specific] statute will necessarily or commonly result in a violation of the general statute.‟ [Citations.]” (People v. Jones (2003) 108 Cal.App.4th 455, 463.)

“Consideration must be given to the entire context surrounding the “special‟ statute to determine the true overlap of the statutes and to ascertain the intent of the Legislature.” (People v. Jenkins (1980) 28 Cal.3d 494, 503.) “The fact that the Legislature has enacted a specific statute covering much the same ground as a more general law is a powerful indication that the Legislature intended the specific provision alone to apply. Indeed, in most instances, an overlap of provisions is determinative of the issue of legislative intent and „requires us to give effect to the special provision alone in the face of the dual applicability of the general provision . . . and the special provision. . . .‟ [Citation.]” (Id. at pp. 505-506.)

What’s interesting about the court’s reasoning in concluding that the Penal Code provision is not preempted is that the elements that differentiate the Vehicle Code misdemeanor provisions from the Penal Code felony provision (and thus prevent preemption) arguably make the misdemeanors harder to prove and more serious than the felony offense. Both of the Vehicle Code provisions require filing a document, whereas the Penal Code provision only requires that the defendant “procure” or “offer” it. The nature of the falsehood in the misdemeanor statutes also seems more serious and harder to prove than the falsehood in the Penal Code provision. Vehicle Code section 20 requires the false statement to be material, and Vehicle Code section 10501 requires that the false statement be made with intent to deceive; yet, neither materiality nor intent to deceive is an element of Penal Code section 115, subdivision (a).

The answer to this curious state of affairs appears to be the in the court’s exlpanation of the purpose of Penal Code section 115:

As the People note, Vehicle Code section 10501’s lack of a requirement that the false report, if genuine, could have been legally filed provides a legally decisive distinction reflecting the Legislature‟s intent, pursuant to Penal Code section 115, to protect recordation of documents in public institutions and the public’s reliance upon them, a concern not apparent in Vehicle Code section 10501. Additionally, as noted above in the discussion of Vehicle Code section 20, Penal Code section 115’s prohibition on knowingly procuring or offering false instruments to be filed is legally distinct from Vehicle Code section 10501’s prohibition on making false statements or actually filing a false report of vehicle theft. This is because an offense under Penal Code section 115 is more egregious because it inherently induces the conduct and reliance of others in its commission.

***

Similarly, a violation of Vehicle Code section 10501 will not necessarily, or even commonly, result in a violation of Penal Code section 115 because the former is concerned with the filing of the false or fraudulent report by the reporter himself or herself; thus, it lacks the more morally turpitudinous act of inducing behavior by another.

The court seems to be saying that the purpose of Penal Code section 115 — to prevent reliance by the public on falsified instruments – is served by imposing criminal liability just for getting a false document even close to filing, regardless of intent. In other words, people need to be darn careful about what they offer for filing to public agencies.

I get that, in the abstract. And, I agree that the technical test for preemption is not met in the case. It seems odd, however, that the practical result of applying the preemption test should lead to this result. The fact of the matter is that the defendant filed a false report of vehicle theft with the highway patrol, which the legislature deemed less punishable than the conduct proscribed by the more general felony statute. What purpose does Vehicle Code section 10501 serve if not to make less culpable those persons who file a particular false document that is not likely to be relied upon by the public?

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Posted in: Preemption

January 4, 2010

When the Attorney General agrees with you

Respondents sometimes must concede minor points along the way while arguing that such points do not require reversal. But seldom does one see the respondent agree that a judgment is even partially reversible.

One is more likely to see it in a criminal appeal than in a civil appeal, especially when the criminal appeal involves errors in sentencing, as in People v. Frausto, case no. B212054 (2d Dist. Dec. 28, 2009), where the attorney general agreed that the trial court erred in imposing three cumulative 5-year sentencing enhancements under Penal Code section 667, subdivision (a)(1) for each of three prior serious felony convictions tried in a single proceeding and that the defendant had been awarded only 464 of the 466 days of presentence custody credits to which he was entitled. (Not that it did the defendant much good. The 2 extra days of presentence custody credits — 2 days — were applied against  a sentence of 214 years to life. Since the three 5-year enhancements were added consecutively to that sentence, the 10-year reduction in enhancements was likewise not much comfort to the defendant.)

The first (and, so far, only) time I got a brief from the attorney general agreeing with my position, I was stunned. I noticed it when I skimmed through the headings of the respondent’s brief, and thought to myself, “Must be a typo. They left out the word ‘not.’” Even when I read the argument under the heading, I had to read it three times just to make sure that I was reading it correctly!

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Posted in: Decision on Appeal, Sentencing

December 31, 2009

Reminder: Supreme Court’s Los Angeles office closes for good today

Today is the last day of operation for The California Supreme Court’s Los Angeles clerk’s office, which is closing for budgetary reasons. The press release announcing the closure states that the Supreme Court will continue to schedule oral arguments in Los Angeles, but litigants must now file all documents at the court’s San Francisco clerk’s office.

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Posted in: California Supreme Court

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