Category Archives: Appellate Procedure

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

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 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

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 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

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 22, 2009

SCOTUS holds discovery ruling requiring disclosure of privileged information is not appealable

Richard Westfall at Rocky Mountain Appellate Blog wrote up the first SCOTUS opinion authored by Justice Sotomayor, Mohawk Industries, Inc. v. Carpenter, in which the unanimous court (with a separate concurrence from Justice Thomas) holds that a discovery order is not immediately appealable under the “collateral order doctrine.” Westfall summarized the case:

In Mohawk, the district court ordered Mohawk to turn over documents Mohawk asserted were protected by the attorney-client privilege. The collateral-order doctrine allows for immediate appeals if: (1) the particular ruling conclusively determines the disputed question; (2) resolves an important issue separate from the merits of the action; and (3) is effectively unreviewable on appeal from a final judgment. Some circuits allow for immediate appeals under the collateral-order doctrine to review whether an order violates the attorney-client privilege. The Supreme Court held in Mohawk that orders requiring disclosure of arguably privileged material will have to wait for a final judgment because they are reviewable after judgment, however imperfectly. Justice Sotomayor noted that parties in such situations can defy disclosure orders and suffer sanctions, which will then be reviewable, or subject themselves to contempt of court, thereby also obtaining review.

Westfall urges the Colorado state courts not to adopt the rule, to which I say . . . be glad you don’t practice in California, Steve! In California state courts, discovery rulings are generally not appealable, even where the disclosure of privileged information would result. In such a situation, the party seeking review must do so by petitioning for a discretionary writ, and hope that the issue presented and the gravity of the disclosure are enough for the court of appeal to exercise its discretion to hear the petition on the merits.

Mohawk Industries resolves a circuit split in which the Ninth Circuit was in the minority camp that allowed appeal from such rulings. (In re Napster, Inc. Litigation (9th Cir. 2007) 479 F.3d 1978.) I’ll have more on the federal angle in an update.

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Posted in: Appellate Jurisdiction, Discovery, Privilege

December 21, 2009

Make the record easy on the eyes, please

UN StenographerI was updating my blogroll and checking up on some of those links in preparation for a re-vamp of this site and a new blog project (more about that tomorrow), and I ran across a year-old post at Criminal Appeal I couldn’t agree with more, which starts:

Dear Court Reporters,

Having finished reading another all-capitalized reporter’s transcript it’s time to again implore you to remember that the proper use of capitalization is not simply a matter of style, but it is more a convention designed to assist the reader and prevent headaches. Capitalization helps the reader find the beginning of the sentence. Lower case letters are easier to discriminate from each other.

Style and ease of reading aside, you’d think the ALL CAPS convention might have been abandoned after it was adopted in the early internet days for use in plain text emails and online bulletin boards and chat rooms as a way of SHOUTING IN WRITING ONLINE. Once people got rich text format email ability (allowing for underlined, bold, and italicized type), the ALL CAPS SHOUTING ONLINE convention may have abated somewhat, but I’m still reminded of it whenever I read an ALL CAPS trial transcript.

I say we leave the ALL CAPS convention for deposition transcripts, where most of the shouting really happens!

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Posted in: Record on Appeal

November 5, 2009

En banc ninth tries to clear up the “abuse of discretion” standard

The “abuse of discretion” standard of review, depending on the particular court applying it and the particular case in which it is applied, can sometimes seem about as clear as mud. The en banc Ninth Circuit set out to clear up the standard in United States v. Hinkson, case no. 05-30303 (9th Cir. Nov. 5, 2009):

Today we consider the familiar “abuse of discretion” standard and how it limits our power as an appellate court to substitute our view of the facts, and the application of those facts to law, for that of the district court.

***

[W]e conclude that our “abuse of discretion” standard is in need of clarification. The standard, as it is currently described, grants a court of appeals power to reverse a district court’s determination of facts tried before it, and the application of those facts to law, if the court of appeals forms a “definite and firm conviction that a mistake has been committed.” At the same time, the standard denies a court of appeals the power to reverse such a determination if the district court’s finding is “permissible.”

Because it has previously been left to us to decide, without further objective guidance, whether we have a “definite and firm conviction that mistake has been committed,” or whether a district court’s finding is “permissible,” there has been no effective limit on our power to substitute our judgment for that of the district court.

Today, after review of our cases and relevant Supreme Court precedent, we re-state the “abuse of discretion” standard of review of a trial court’s factual findings as an objective two-part test. As discussed below, our newly stated “abuse of discretion” test requires us first to consider whether the district court identified the correct legal standard for decision of the issue before it. Second, the test then requires us to determine whether the district court’s findings of fact, and its application of those findings of fact to the correct legal standard, were illogical, implausible, or without support in inferences that may be drawn from facts in the record.

I’ll be straight with you here: I haven’t read the combined 107 pages of opinions. You can get more details about the case from Ninth Circuit Blog.

I’ll probably have more to say about this case after I’ve read it in detail, but for now . . . well, as I’ve noted before, detailed formulations of the abuse of discretion standard tend to incorporate multiple standards of review, each of which is applied to a discrete step in a multiple-step analysis as to whether the trial court abused its discretion. The Hinkson formulation certainly seems to continue that tradition. It is a welcome development, but I’m not sure that the second step supplies the objectivity the court claims it does.

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Posted in: Appellate Procedure, Standard of Review

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June 2, 2009

Review of Remand Orders: One Man’s Obsession

And I mean obsession in a good way. I never thought I’d get out-geeked on the subject of jurisdiction, and especially not on the subject of appellate jurisdiction, but I think Jones Day partner Mark Herrmann pulled it off today at his Drug & Device Law blog. In a long joint post there regarding when an appellate court may review an order remanding a case back to the state court from which it was removed, Herrmann and his blog partner Jim Beck of Dechert LLP not only chronicle the history of Supreme Court jurisprudence in this area and propose sensible reform, they start their discussion by citing Herrmann’s 22-year-old law review article on the subject as evidence that he was “obsessessed with this question [of when review is allowed].” I’ve described myself as a jurisdictional “geek” plenty of times, but never as “obsessed”!

Substantively, the post is remarkably thorough and fun to read. (Herrman’s obsession isn’t the only humorous point.) It concludes with interesting detail on the most recent Supreme Court decision and a discussion of practical consequences.

(For Ninth Circuit practitioners, it may be interesting to note that the trigger for Herrmann’s and Beck’s post was last month’s Supreme Court decision in Carlsbad Technology, Inc. v. HIF Bio, Inc., 556 U.S. __ (2009). Carlsbad came from the Federal Circuit, which had split from several others, including the Ninth, to hold that 28 USC § 1447(d) precludes appellate review of a remand order based on the district court’s discretionary decision under 28 USC § 1367(c) not to assert supplemental jurisdiction over state claims. The Supreme Court’s reversal vindicates the Ninth Circuit’s wisdom (not to mention adherence to stare decisis) when it declined the invitation to reconsider its position in last year’s California Dept. of Water v. Powerex ___ F.3d ___ (9th Cir. 2008). [I'll update that cite for you later when I have access to the reporters.] By the time of the California Dept. of Water case, the rule was well-established in the Ninth Circuit that review was available by petition for writ of mandate. However, the Ninth was forced by intervening Supreme Court authority to find that review is available by appeal. My coverage of Powerex is here.)

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Posted in: Appellate Jurisdiction, Federal Procedure, Removal

April 24, 2009

A civil case and a criminal case look the same to a mailbox

Prison CellFor an appellant whose mail slot looks like the one pictured, there was an important decision yesterday.

The California Supreme Court reached a sensible decision in Silverbrand v. County of Los Angeles, case no. S143929 (Apr. 23, 2009), in which the court holds that a prisoner’s pro se notice of appeal in a civil case is timely filed upon deposit with prison authorities for mailing. This brings the rule for timely filing of an appeal by a pro se prisoner in a civil case in line with the rule for a pro se prisoner’s filing of an appeal in a criminal case.

Silverbrand’s medical malpractice action against the county and jail medical personnel had been decided against him by summary judgment. He filed his notice of appeal by handing a correctly addressed, postage-paid envelope to prison officials the day before his deadline to file, but it did not reach the court until 2 days after the deadline. The court of appeal dismissed the appeal.

Here’s how the court introduced its decision reversing the court of appeal:

The prison-delivery rule — as most recently articulated by this court — provides that a self-represented prisoner’s notice of appeal in a criminal case is deemed timely filed if, within the relevant period set forth in the California Rules of Court, the notice is delivered to prison authorities pursuant to the procedures established for prisoner mail.  (See In re Jordan (1992) 4 Cal.4th 116 (Jordan).) The question before us in this case is whether the prison-delivery rule properly applies to a self-represented prisoner’s filing of a notice of appeal in a civil case.

Rooted in common law and well established in California jurisprudence, the prison-delivery rule, also referred to as the prison mailbox rule, “ensures that an unrepresented defendant, confined during the period allowed for the filing of an appeal, is accorded an opportunity to comply with the filing requirements fully comparable to that provided to a defendant who is represented by counsel or who is not confined.” (Jordan, supra, 4 Cal.4th at p. 119.)  It also “furthers the efficient use of judicial resources by establishing a ‘bright-line’ test that permits courts to avoid the substantial administrative burden that would be imposed were courts required to determine, on case-by-case basis, whether a prisoner’s notice of appeal was delivered to prison authorities ‘sufficiently in advance of the filing deadline’ to permit the timely filing of the notice in the county clerk’s office.”  (Ibid.)

There appears to be no sound basis for construing the relevant case law and rules of court as maintaining one rule in this context for criminal appeals and another for civil appeals.  Self-represented prisoners — who can file a notice of appeal only by delivering it to prison authorities for mailing — should be allowed the same opportunity as nonprisoners and prisoners with counsel to pursue their appellate rights, regardless of the nature of the appeal pursued.  Broadening the prison-delivery rule to include civil notices of appeal also should result in additional administrative benefits both for trial courts and reviewing courts, thereby improving judicial efficiency.  Therefore, for the same reasons that persuaded us that the prison-delivery rule should apply to the filing of a notice of appeal in a criminal case, we are persuaded that a notice of appeal by an incarcerated self-represented litigant in a civil case should be deemed filed as of the date the prisoner properly submitted the notice to prison authorities for forwarding to the clerk of the superior court.

That all seems rather obvious, doesn’t it? But it wasn’t obvious at all from the relevant rules of court, as the rule for criminal appeals (rule 8.308) codifies (at subsection (e)) the prison-delivery rule, while the rule for civil appeals (rule 8.104) does not. That kind of distinction usually leads a court to infer that the drafter deliberately made the rules different, and that’s exactly what the court of appeal understandably concluded in dismissing Silverbrand’s appeal.

You’ve read warnings from me time and again that the notice of appeal deadline is a jurisdictional limitation. Miss it, and you’re stuck. There is no relief.

But here, the Supremes note a tension between the unforgiving jurisdiction nature of the deadline and a policy of according the right to appeal “in doubtful cases ‘when such can be accomplished without doing violence to applicable rules.’ ” (Citation omitted.) This policy led to the development of the prison-delivery rule in the first place. Recapping that history and noting a national trend toward application of the prison-delivery rule in civil cases, the court reaches the conclusion summarized in the block quote above: there is no good reason to treat civil appeals different from criminal appeals.

The court overcomes the literal and harsh application of the court rule by noting that the rationale of the prison-delivery is not that it extends the deadline for filing to the date the notice of appeal is actually received by the court, but rather because the rule deems the notice of appeal constructively filed on the date of delivery to prison officials for mailing, despite the fact that it does not reach the court until later. I thought the opinion did some somersaults in its analysis of the rules, but was convinced nonetheless.

Please note, all you civil litigants, even self-represented ones, this does not mean your deposit in a mailbox on the last day for filing will suffice.  Remember, the court was deciding the effect of a prison-delivery rule.  If your mailbox doesn’t resemble the one pictured, you need to get your notice of appeal to the court — not the mailbox — on time.

It’s also worth noting that Silverbrand had the benefit of top-notch counsel in the Supreme Court at a bargain price (as in “free”). The Supremes appointed appellate powerhouse Horvitz & Levy to represent Silverbrand, and he had three amicus briefs filed on his behalf.

UPDATE: Thanks to Horvitz & Levy for linking to this post from their website “bragging page” about the case.

(Photo courtesy of Andrew Bardwell pursuant to Creative Commons Attribution-Share Alike 2.0 Generic License.)

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Posted in: Appellate Jurisdiction, Appellate Procedure, Notice of Appeal

March 19, 2009

Manufacturing appellate jurisdiction over a discovery ruling

When I read Brescia v. Angelin, case no. B204003 (2d Dist. Mar. 17, 2009), I was reminded about how Saturday Night Live once ran one a commercial parody for a product with the advertising slogan “It’s a dessert topping! It’s a floor wax!  It’s two products in one!”

How do I make that connection? Because when I was done reading the case, I thought, “It’s a dismissal after sustaining a demurrer! It’s a discovery ruling! It’s two rulings in one!”

And so did the court of appeal, though it didn’t say it in so many words.

Brescia cross-complained against respondents for trade secret misappropriation.  Code of Civil Procedure section 2019.210 requires a trade secret plaintiff to identify the trade secret “with particularity” before commencing discovery.  Respondents moved for protective orders against discovery served by Brescia, claiming that he had not adequately identified the trade secret.  Finding the initial identification inadequate, the court gave Brescia several opportunities to make more particular designations, while the hearing on the protective order motions (which were now greater in number) were continued.  During this time, the respondents also demurred to Brescia’s cross-complaint.

Eventually, the protective order motions and demurrer (as well as a motion to strike) were heard on the same date, and this is where it gets interesting.  The court goes into great detail about the exchange among counsel and the court, but summarizes it as follows:

[T]he parties, in an attempt to expedite any appeal, stipulated that if the court determined the trade secret designation insufficient, it could use respondents’ demurrer to the cross-complaint as a procedural device to dismiss Brescia’s trade secret misappropriation claim for failure to comply with section 2019.210

That should have set off alarms in everyone’s mind, but we’ll get to that in a minute. The court found the disclosure inadequate and sustained the demurrer without leave to amend.

Brescia appealed from the resulting judgment of dismissal and, notwithstanding his stipulation in the trial court that the inadequacy of the trade secret disclosure would dispose of the case, argued that the court could not use a ruling on the trade secret disclosure as a ground for sustaining the demurrer. After recounting all the ways in which the stipulated arrangement violated normal procedural rules and effectively converted an unappealable discovery ruling into an appealable judgment, the court reminds Brescia of the doctrine of “invited error”:

Nonetheless, despite these inherent problems, Brescia stipulated to the procedure used by the court, as did respondents.  Indeed, the trial court would not have used this procedure but for Brescia’s express consent.  Brescia is in the procedural posture he sought. To the extent he now challenges that posture as improper and awkward, he effectively misled the trial court into believing the procedure was acceptable to him as a means to secure immediate appellate review of the sufficiency of his section 2019.210 designation.  Thus, he cannot contend on appeal that the termination of his action against respondents was procedurally defective.  (See Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403 [doctrine of invited error applies where party induces error and, in doing so, misleads court].)

But Brescia actually prevails on the adequacy of his disclosure, so the court reverses, rejecting respondents’ contention that the demurrer gave an alternate ground for affirmance.

Respondents argue that the alternative grounds exist to support the court’s ruling sustaining the demurrer to the cross-complaint without leave to amend:  (1) the cross-complaint fails to state facts sufficient to plead a trade secret misappropriation claim against respondents personally, and (2) Brescia’s legal theory creates an improper prior restraint on trade.

In the unusual procedural posture of this case, we decline to address these issues.  The ruling that forms the basis for this appeal is a discovery ruling – the sufficiency of Brescia’s section 2019.210 designation.  By stipulation, the parties and the court deemed that discovery ruling to be a ground upon which the court would dispose of the cross-complaint through the procedural fiction that it formed a basis for demurrer.  We have given effect to that stipulated fiction and have addressed the merits of the section 2019.210 issue.  But we will not carry the fiction further and purport to review a ruling on a demurrer that was never truly made.  Respondents are asking us, in the first instance, to rule on their challenges to the cross-complaint and to sustain the demurrer without leave to amend.  We decline.  Respondents must first obtain a ruling on the demurrer in the trial court, which is the appropriate forum to determine in the first instance whether the demurrer states meritorious grounds, and, if so, whether leave to amend should be granted.

(Emphasis added.)

Curiously, none of the analysis talked about in this post is part of the published opinion, which is limited to the issue of the adequacy of the trade secret disclosure. The court clearly was not pleased with the stipulation, and a published decision would have announced their discouragement of such arrangements.  On the other hand, notwithstanding the court’s distaste for the arrangement, publication might have encouraged more of them.  The court did, after all, hear the appeal, and determine the merits of the underlying discovery ruling.  Other plaintiffs faced with the same unattractive alternatives to such a stipulation — waiting to appeal after final judgment or petitioning for writ relief with a greater than 90% chance of not being hard on the merits — may find the “Brescia option” attractive . . . if they learn of it.

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Posted in: Appellate Jurisdiction, Trade Secrets, Waiver of Issues

January 20, 2009

A Published Supersedeas Case. Really!

From my lips to the Court of Appeal’s ears . . . or maybe from my keyboard to the Court of Appeal’s monitors . . . barely a week after I lamented how old most of the published case law is regarding supersedeas and other stays on appeal, along comes Veyna v. Orange County Nursery, Inc., case no. G041305 (4th Dist. Jan. 15, 2009), a published decision denying a petition for writ of supersedeas.  Published opinions on this topic rarely come along, so we might as well grab all the gusto we can from it.  First, a synopsis of the facts, then a couple of lessons to take away from the case.

The underlying proceeding was filed by the minority shareholders of a corporation to force its dissolution.  The parties stipulated to follow the buy-out procedure of Corporations Code section 2000, under which the corporation would purchase the shares of the minority shareholders.  Since the parties could not agree on share value (imagine that!), the majority shareholders were required to post a bond pending a final order.

After independent appraisers submitted a unanimous valuation report to the court, the minority shareholders moved to confirm the appraisal.  The majority shareholders fought the motion, contending that the business had been overvalued.  The trial court adopted the appraisers’ valuation of the company and entered an alternative decree fixing a share price and setting a date by which the purchasing shareholders had to tender cash payment to the minority shareholders for their shares, and which provided that failure to timely tender cash payment would result in the entry of judgment of involuntary dissolution.

Ten days before payment was due (and without making any payment), the corporation filed its notice of appeal, and three days after that they filed their petition for writ of supersedeas in the court of appeal without first seeking a stay in the trial court.

The court denies the petition, with some lessons along the way, which I present in no particular order.

The issue that I think caused the court of appeal to publish the decision is the first one it tackles: whether the alternative order was automatically stayed upon the filing of the appeal from it.  The court holds that the order was not automatically stayed because the proceeding wasn’t really an “action” for purposes of the rules governing stays and undertakings on appeal in a civil “action.”  (Code Civ. Proc. secs. 22-23.)  In fact, the parties agreed that the involuntary dissolution suit was a “special proceeding” under Code of Civil Procedure section 23.  Since the stay provisions (Code of Civil Procedure sections 916 et seq.) of Part 2 of the Code apply only in civil actions, the decree was not automatically stayed.

(This is probably a good time to warn prospective appellants in civil actions against taking comfort in the “automatic stay” of Code of Civil Procedure section 916, under which “the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order.”  There’s a huge “but”: the automatic stay of section 916 is subject to so many exceptions that they  swallow the rule, and it is the unusual case that is actually stayed automatically.)

Special proceedings are subject to the stay provisions of Part 2 only if the statute creating the special proceeding expressly incorporates them.  The majority shareholders directed the court’s attention to Corporations Code section 2000, subdivision (d), under which, to prevent winding up and dissolution, the purchaing parties “shall pay to the moving parties the value of their shares ascertained and decreed within the time specified pursuant to this section, or, in the case of appeal, as fixed on appeal.“  (Emphasis added.)  Unfortunately, they did not make clear what they thought the significance of the provision was.

The court rejects two possible assertions based on the cited language.  First, holding firm to the rule that statutory incorporation of Part 2 must be express, it rejects the possibility that the cited language was intended to incorporate the stay provisions of Part 2.  Second, it rejects the possibility that the cited language itself imposed a stay.  Because there is a stay on appeal from special proceedings only when the implementing statute expressly incorporates Part 2, the  language cannot be read to implement a stay independent of Part 2.

I think that’s probably it for the new stuff.

One thing really jumped out at me.  Did you note my reference to “possible assertions”?  The court began its analysis: “It is unclear how subdivision (d) purports to address the narrow question of whether an automatic stay comes into effect upon the perfecting of an appeal.  If the argument is that . . . “  If the argument is?  The court was confused what the appellant’s argument was even after hearing oral argument!

Reminder of an old rule: self-executing judgments are not automatically stayed (and supersedeas is usually inappropriate, too).  Since failure to tender payment for the minority’s shares would result in a judgment of dissolution without further action by the court, it is self-executing, and thus not stayed.

Another reminder of an old rule: apply for a stay in the trial court before petitioning for supersedeas.  Moving on to its discretionary power to issue supersedeas, the court cites appellant’s failure to seek a stay from the trial court as grounds for denying the petition, which ought to serve as an important reminder to appellants that the court of appeal takes this prerequisite seriously:

An application for a stay of a judgment should, wherever possible, be made first in the superior court. [Citation.] The reason is self-evident but it bears repeating.  “A trial court’s familiarity with the evolving circumstances of a case normally constitutes it the appropriate forum to weigh the relative hardships on the parties, including the likelihood that substantial questions will be raised on appeal, and its refusal to grant or to continue an injunction during appeal is entitled to great weight.” [Citation.]

Appellant said it did not apply for a stay in the trial court because it did not believe it had any remedy available to it there (remember that Code of Civil Procedure section 918 would not apply).  However, Since the trial court’s preliminary decree had specifically allowed that the payment date could be postponed “for good cause,” the court of appeal holds that relief was at least theoretically available in the trial court.  Thus, the court denies the petition “on the narrow ground that the [petitioners] should have sought relief in the superior court first.”

Make sure you provide an adequate record when you are seeking supersedeas.  Petitions for supersedeas are often filed prior to preparation of the record on appeal, so the petitioner is responsible for submitting documents to the court of appeal sufficient to decide the petition.  (Cal. Rules of Court, rule 8.112(a)(4)(B)(iv).)  Though appellants argued that it would raise a substantial question on appeal regarding the propriety of the appraisal procedure, it did not even submit its own papers opposing the motion to confirm the valuation.  Their failure to do so could only emphasize that the superior court, because of its familiarity with the case, was better suited to first entertain a request for a stay.

By the way, the case is very interesting reading on the subject of involuntary dissolution.

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Posted in: Appellate Procedure, Stays & Supersedeas

January 7, 2009

“There is no exception for Supreme Court cases of ancient vintage.”

That’s from Mehr v. Superior Court (1983) 139 Cal.App.3d 1044, 1049 fn. 3, regarding the doctrine of stare decisis.  It’s a handy quote to keep in your arsenal for those occasions when you have to cite very old cases.  I can remember legal research and writing instructors pounding into our heads that we should always use newer cases, where available.  Thus, while I’ve never seen anyone try to discount a case based on its age alone, there’s that uneasy feeling any time I find it necessary to cite an old case that the adverse party will try to do just that.

A smart lawyer, of course, would not rely on age alone.  The lawyer would point to some changed circumstance since the time the case was decided, such as changes in statutes or case law that the older decision relied on.  Nonetheless, I feel a little better having Mehr at my disposal.

Here’s the full paragraph from the case:

Although the California Supreme Court is free to overrule its own prior decisions, the doctrine of stare decisis compels lower court tribunals to follow the Supreme Court whatever reason the intermediate tribunals might have for not wishing to do so. [Citations.]  There is no exception for Supreme Court cases of ancient vintage.

Speaking of cases of ancient vintage, they seem to crop up a lot in the area of stays and supersedeas pending appeal.  This strikes me as an odd place for old cases to dominate, in light of the intervening overhaul of the relevant statutes.

If anyone has an explanation, theory, or even a SWAG** as to why old cases dominate in this area — or who, perhaps, wishes to point out that my factual premise is wrong — please leave a comment on this post. (**SWAG = Scientific Wild-Ass Guess – a term I picked up while studying engineering.)

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Posted in: Stare Decisis

January 6, 2009

Who Says CRC 8.108(f)(1) is for Cross-Appeals Only?

Certainly not Division Three of the Fourth District Court of Appeal.  In The Termo Co. v. Luther, case no. G038435 (Dec. 17, 2008), the court holds that the rule of court allowing the 20-day window for “any other party to appeal from the same judgment or order,” triggered by the clerk’s mailing of the notice of the filing of an appeal, means just what it says, notwithstanding its “Cross-appeal” heading.

Termo and Angus Development Corporation were co-petitioners in the administrative writ proceedings.  The trial court denied the writ.  Termo filed its notice of appeal from the judgment on the 59th day following service of notice of entry of judgment — just one day prior to the jurisdictional deadline of 60 days following mailing of notice of entry of judgment.  (See rule 8.104(a)(2), Cal. Rules of Court)  Angus filed its notice of appeal from the same judgment two days later — 61 days following mailing of notice of entry of judgment.  Respondent Hunt Petroleum (AEC), Inc., joined by respondent Director of Conservation Bridgett Luther, moved to dismiss Angus’s appeal on the basis that it was untimely filed.

The applicable rule** states: “If an appellant timely appeals from a judgment or appealable order, the time for any other party to appeal from the same judgment or order is extended until 20 days after the superior court clerk mails notification of the first appeal.” (** The court decided the case on the basis of former rule 8.104(e)(1) as in effect at the time the appeals were taken, but the wording of current rule 8.108(f)(1) is identical, as is the “Cross-appeal” heading noted by the court, and thus the result should be the same under the current rule.)

Respondents contended the rule applies only to cross-appeals and to parties adverse to the first appellant, but simple statutory definitions allowed the court to make short shrift of those arguments:

Hunt contends that California Rules of Court, rule 8.108(e)(1) is inapplicable, for two reasons. First, Hunt says the rule applies only to cross-appeals and Angus did not file a cross-appeal. Second, Hunt asserts that the rule applies only when the party seeking to utilize the 20-day extension period is adverse to the first party to file an appeal. We disagree.

Although the topic heading to California Rules of Court, rule 8.108(e) reads “Cross-appeal,” as Angus points out, “[b]y definition, a cross-appeal is any appeal filed after the first appeal [citation], and [the] rule . . . does not differentiate between cross-appeals which are protective and those which are independent.” (Life v. County of Los Angeles (1990) 218 Cal.App.3d 1287, 1297- 1298, fn. omitted.) Moreover, “[t]he usual rules of statutory construction are applicable to the interpretation of the California Rules of Court. [Citation.]” (Id. at p. 1296.) “‘“When statutory language is . . . clear and unambiguous there is no need for construction, and courts should not indulge in it.” [Citation.]’ [Citation.] Under the guise of construction, the court will not rewrite a law and will not give the words an effect different from the plain and direct import of the terms used. [Citation.]” (Ibid.) Here, the text of rule 8.108(e)(1) contains no limitation of the type asserted by Hunt. It requires neither that an appeal be denominated a “cross-appeal” nor that the second party to file an appeal be adverse to the first party to do so, in order for the 20-day extension period to apply.

In this case, Termo filed a timely appeal from a judgment and an order and, two days thereafter, Angus filed an appeal from the same judgment and order. The appeal of Angus is timely filed under California Rules of Court, rule 8.108(e)(1). The motion to dismiss is denied.

Appellate practitioners already know not to turn away a client just because more than 60 days have elapsed since the notice of entry of judgment was mailed and the client has not yet appealed, because post-trial motions can extend the time to appeal.  (See rule 8.208(b)-(e).)  Make sure you don’t overlook this interpretation of rule 8.108(f)(1), either.

My thanks to Long Beach business litigator Charles Hokanson, who alerted me to this important case, knowing that I was on hiatus when it was published.  Nice to know at least one of you guys is looking out for me!

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Posted in: Appellate Jurisdiction, Appellate Procedure, Notice of Appeal

October 30, 2008

Got a stay? Challenge the judge anyway!

Under Code of Civil Procedure 170.3, subdivision (c), a party may apply to disqualify the trial judge for cause, but must submit the statement of objection “at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification.”  In Tri Counties Bank v. Superior Court (Amaya-Guenon), case no. F055084 (5th Dist. Oct. 28, 2008), Tri Counties tried to convince the court of appeal that its seven-month delay met the “earliest practical opportunity standard” under the circumstances of the case.  No dice.  And in rejecting that contention, the court of appeal makes an interesting exception to a stay of proceedings in the trial court.

Tri Counties asserted that the the judge should be disqualified for conducting an independent investigation into a factual issue relevant to class certification.  It learned of the investigation from the trial court’s tentative ruling in the class certification motion and, in a supplemental memorandum, urged it as a ground to deny certification.  When the trial court certified the class, Tri Counties sought appellate review of the certification order by petitioning for a writ of mandate, citing the improper investigation as a ground to grant the petition, but did not seek the trial judge’s disualification.  Only after that petition was denied did Tri Counties submit its 170.3 statement of objection, which the trial court struck as untimely.  Tri Counties then filed a writ petition challenging that order.

Tri Counties contended that the stay issued in connection with the first writ petition prevented it from filing its statement of objection until the conclusion of that proceeding.  The court notes, however, that the stay did not take effect until more than three moths after Tri Counties became aware of the improper investigation, leaving it plenty of time to challenge the judge.

The second reason the court gave was more interesting.  It holds that proceedings regarding the qualification of a judge are distinct from the ordinary proceedings, and the stay affects only the latter:

Second, although unnecessary to our conclusion that the statement of objection was untimely, it is our view that petitioner could have filed a statement of objection even while the stay was in effect.  Our general stay of proceedings was obviously directed to the underlying proceedings between the parties to the action (i.e., to the litigation itself), not to questions of the judge’s qualification to preside over those proceedings.  A judge’s qualification to preside as judge in a particular case is foundational to, and hence distinct from, the ordinary proceedings between the parties that would be tried or heard by the judge.  (See § 170.5, subd. (f).)  Because of this basic distinction between a judge’s qualification and the underlying litigation, we do not believe that our stay could reasonably be understood as barring petitioner from promptly filing a statement of objection in the trial court.  We note further that disqualification of the trial judge was not raised in the writ of mandate petition challenging the class certification order, thus the filing of a statement of objection to pursue disqualification would not have interfered with or affected our appellate review of that order.

This is an interesting and important distinction.  It’s also quite interesting that the court went out of its way to discuss it, since it was unnecessary once it found Tri Counties had delayed too long even before the stay went into effect.

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Posted in: Judges, Mandamus/Prohibition, Stays & Supersedeas

October 28, 2008

There’s No “E” Before “Mails” When it Comes to Triggering the Deadline to Appeal

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Modern communication and the California Rules of Court collide in Citizens for Civic Accountability v. Town of Danville, case no. A121899 (1st Dist. Oct. 27, 2008), and the winner is . . . the rules! At issue: whether the e-mailing of a notice that a judgment has been filed, with a link to access a copy of the judgment, triggers the deadline to appeal under rule 8.104(a), California Rules of Court, which provides that a 60-day deadline to appeal is triggered when the clerk “mails” a notice of entry of judgment or a file-stamped copy of the judgment.

The trial court designated the case complex litigation and ordered compliance with the court’s Electronic Case Filing Standing Order, which provided that orders filed by the court would be served electronically only, either by e-mail or through an electronic filing service provider (in this case, LexisNexis File & Serve). The order granting in part and denying in part the petition for writ of mandate was served as follows:

On April 1, 2008, LexisNexis File & Serve sent the parties a message by electronic transmission (an e-mail) stating, “You are being served documents that have been electronically submitted in [Citizens for Public Accountability v. Town of Danville] through LexisNexis File & Serve.” The e-mail identified the document as a Judgment on Petition for Writ of Mandate, and stated that it had been authorized for filing on April 1, 2008. To view the document, the parties had to visit a LexisNexis File & Serve website, sign in, and open a document file. The document so accessed bore an “electronically filed” file stamp dated April 1, 2008.

Respondents moved to dismiss the appeal on the ground that the notice of appeal was filed more than 60 days after that electronic service. The court of appeal denies he motion, holding that “the 60-day appeal period in California Rules of Court, rule 8.104(a)(1) is triggered only by the mailing of a judgment by the United States Postal Service.” (Emphasis added.) Keys to this conclusion: resolution of ambiguities in the rules should be construed to preserve the right to appeal, statutory distinctions between mailing and other forms of service indicate that “mail” means the U.S. Postal Service.

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Posted in: Appellate Jurisdiction, Notice of Appeal

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October 25, 2008

The Judgment, the Whole Judgment, and Nothing But the Judgment

Sometimes, a judgment is a mixed bag. That’s how all the parties must have viewed the judgment in Satchmed Plaza Owners Assn. v. UWMC Hospital Corp., case no. G038119 (4th Dist. Oct. 23, 2008). The judgment enforced Satchmed’s right of first refusal with respect to 22 owned medical office units by requiring UWMC to offer them to Satchmed at a certain price. But the judgment did not require such an offer on 12 other units, which were leased. Unsurprisingly, perhaps, the judgment stated that there was no prevailing party.

Mixed bags create competing incentives. Here, one incentive got the best of Satchmed.

UWMC complied with the judgment by offering the 22 offices to Satchmed, which decided to purchase them. But those other 12 units. . . well, Satchmed just couldn’t let go. And those guys at Satchmed must have thought, “Hey, if you think about it, we won on 22 of 34 units, so aren’t we the prevailing party?” So Satchmed appealed, challenging those portions of the judgment regarding the 12 units and the prevailing party determination.

Under the established doctrine that a party’s voluntary acceptance of the benefits of a judgment — or even a portion of them — precludes an appeal by that party, Satchmed’s appeal is dismissed on the ground that it waived its right to appeal by purchasing the 22 units. Satchmed claimed the doctrine did not apply because of two equally established equitable exceptions. The court not only rejected the arguments, but noted that Satchmed’s conduct was manipulative.

First, Satchmed claimed that its acceptance of the benefits was compelled, rather than voluntary, because it risked losing its right to purchase the 22 units if it appealed the judgment. After noting that Satchmed could have appealed “without fear that its right to accept UWMC’s offer would evaporate by the simple act of filing” because matters relating to enforcement of the judgment would have been automatically stayed by the appeal, the court points out the lack of any real compulsion:

The judgment did not put Satchmed at risk of losing any property it already owned. Furthermore, Satchmed was not at risk of forfeiting monies to which it was entitled by statute if it chose to prosecute an appeal. Satchmed just wanted to aggrandize its award without risk. It simply had to choose whether it wanted to file an appeal in pursuit of an even greater award than the judgment provided to it, which would entail risking a reversal of the favorable portion of the judgment, or whether it wanted to simply accept the benefit of the favorable portion of the judgment, and thereby waive the right to appeal from the unfavorable portions. Having to make a choice of this nature does not make the chosen avenue involuntary.

Second, Satchmed contended the judgment was severable, but the court find that the only facts that Satchmed relied on were created by it after the judgment, and points out that a party may not make a nonseverable judgment severable by its post-judgment actions:

[T]he portions of the judgment pertaining to the 12 leased units and the prevailing party status are not severable. Satchmed attempts to use clever timing to convert a nonseverable judgment into a severable one. We look here at the judgment at the time it was entered, before any party appealed therefrom. At that point in time, it is clear that the judgment was not severable. A ruling pertaining to the 12 leased units easily could have affected the 22 owned units, and vice versa. But Satchmed seized the portion of the judgment beneficial to itself, and took title to the 22 owned units. It then said that no ruling on the 12 leased units could possibly affect the status of the 22 owned units. In other words, it had then put the 22 owned units beyond the reach of UWMC’s attack and beyond the purview of this court. Satchmed’s claim that the judgment was then severable is essentially a claim that the judgment had become severable because Satchmed had made it so. It does not work that way. Satchmed cannot have its cake and eat it too. Having accepted the benefits of the portion of the judgment making title to the 22 owned units available to it, it cannot now attack the portion of the judgment making title to the 12 leased units unavailable to it.

In short: a judgment is either severable when entered or not. One cannot convert a severable judgment into a severable one.

Are you tempted by the juicy part of a judgment, but tempted to appeal the rest? Think it over carefully before you decide what to do, and especially think twice about maneuvering to make the facts fit within an exception to the “acceptance equals waiver” rule. It won’t pay off.

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Posted in: Judgment, Waiver of Issues

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October 16, 2008

What does “abuse of discretion” mean in your case?

Sometimes, it seems that defining an “abuse of discretion” is like nailing jello to the wall (maybe worse, since the latter is difficult, but not impossible).  There are many nuances to the standard, which can depend on the statute being applied, the basis for the abuse of discretion, and the particular procedural posture of the case. 

The last of these variables is what helps the appellant overcome this highly deferential standard of review and have the default judgment against it lifted in Fasuyi v. Permatetex, Inc. case no. A117760 (1st Dist. Oct. 15, 2008).  Permatex made a motion under Code of Civil Procedure section 473 to vacate the default judgment against it and appealed from the order denying relief.  The court of appeal tells us at the outset that the “abuse of discretion” standard applicable here may not be quite as deferential as you would expect (footnote omitted): 

The law favors resolution of cases on their merits, and because it does, any doubts about whether Code of Civil Procedure section 473 relief should be granted “must be resolved in favor of the party seeking relief from default [citations]. Therefore, a trial court denying relief is scrutinized more carefully than an order permitting trial on the merits. [Citations.]” (Rappleyea v. Campbell(1994) 8 Cal.4th 975, 980 (Rappleyea).) Justice Mosk began Rappleyea with a succinct statement of the question before the Supreme Court and its answer: “The question is whether a default must be set aside and a default judgment reversed on the ground of abuse of discretion. We conclude that they must be.” (8 Cal.4th at p. 978.) The question before us is the same. And so is our answer.

There are two dichotomies here, one clearly defined, one not.  Orders denying 473 relief will be “scrutinized more carefully” than orders granting relief.  That is clear-cut.  What isn’t so clear is what “scrutinized more carefully” actually means while remaining within the “abuse of discretion” standard.” 

In any event, the case is yet another reminder that “abuse of discretion” may have a particularized meaning or application in your case.  And if you happen to be requesting a default judgment any time soon, I suggest you read this case for some of the pitfalls and an exposition on the gatekeeping role of the trial court.

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Posted in: Appellate Procedure, California Procedure, Judgment, Standard of Review

October 13, 2008

Procedural Exits off the Appellate Freeway

 A year or so ago, I heard a California appellate court justice advise that the court of appeal examines every case for issues that will allow the court to dispose of the case without reaching the merits. He explained the process with a metaphor, which I’ll try to convey in this post (paraphrasing throughout).

“Envision an appeal as the freeway between Fresno and Los Angeles, with Fresno being the filing of the notice of appeal and Los Angeles being a decision on the merits,” he said. “Now, think of each exit on that stretch of freeway as an opportunity for the court not to reach the merits. The court would prefer to take one of those exits rather than reach Los Angeles, there are an awful lot of exits, and it’s going to check each one as it goes by to see if the exit provides an opportunity to get off the freeway presents.”  Hence, his nickname for issues that can prevent a decision on the merits: “freeway issues.”

Are there freeway issues lurking in your appeal?  Be ready to address them!   Because a smart respondent’s lawyer is going to look for them.  (I will go through some of the freeway issues in a future post.)

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Posted in: Appellate Procedure

October 1, 2008

A Double Standard . . . of Review

An appropriate follow-up to last week’s post that discussed the pitfalls of the standard of review is United States v. Vega, case no. 07-50245 (9th Cir. Sept. 24, 2008). It illustrates a double standard that one wouldn’t ordinarily expect.

In the district court, Vega challenged two conditions on the supervised release portion of his sentence.  On appeal, however, he argued that a third condition of his supervised release was also error.

You might think he’d be out of luck entirely on that third condition, the general rule being that an argument cannot be made for the first time on appeal  But he’s not.

Though Vega did not challenge the third condition in the district court, the effect of that failure is not to foreclose his argument in the court of appeals, but merely to subject his claim to a standard of review more difficult for him to overcome.  That is, for the two conditions Vega did challenge in the district court, the court of appeals evaluates the district court’s imposition of the conditions under an abuse of discretion standard, while requiring “plain error” for the condition left unchallenged in the district court.

There’s a larger lesson here.  Notwithstanding the general rule that arguments raised for the first time on appeal will not be entertained by the appellate court, I think it pays for an appellant to be aggressive about raising such arguments — good ones, at least — wherever the rules suggest a way to get them in.  Don’t dismiss arguments out of hand just because they were not raised (or perhaps raised with less specificity) in the trial court.  Carefully look at the case law, and if there’s an argument to be made that the court should consider your “new” argument, go for it.

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Posted in: Appellate Procedure, Waiver of Issues

October 1, 2008

Don’t Forget, Appellants: The Record is Your Burden, Too

Everyone knows, or should know, that part of the appellant’s burden of demonstrating prejudicial error is to present a record that adequately demonstrates the error. If you’re arguing the court erred in granting summary judgment, you’d think it would be pretty obvious to include all the moving papers, including the moving party’s statement of undisputed material facts (Code Civ. Proc. § 437c, subd. (b)(1)). The appellant in Gunn v Mariners Church, Inc., case no. G038445 (4th Dist. Sept. 2, 2008, ordered published Sept. 30, 2008), failed to include the moving party’ separate statement, with potentially dire consequences, but catches a break from an accommodating court:

Critical to our review of any summary judgment is the moving party’s separate statement of undisputed facts. Gunn elected to proceed by way of an appellant’s appendix (Cal. Rules of Court, rule 8.124), in which he has included Mariners Church’s points and authorities and its attorney’s declaration to which various deposition pages and other pieces of documentary evidence, but not Mariners Church’s actual separate statement of undisputed facts. Gunn’s failure to provide a complete record arguably precludes him from meeting his appellate burden. [Citations.]

Gunn has, however, included his own separate statement in the appellant’s appendix, which appears to be in the form required by the court rules juxtaposing Mariners Church’s assertions of undisputed fact with Gunn’s responses thereto. (Cal. Rules of Court, rule 3.1350(d).) And Mariners Church does not suggest Gunn’s separate statement inaccurately represents its statement of undisputed facts. Accordingly, we will proceed on the merits based on Gunn’s separate statement and the evidence Mariners Church submitted.

I wonder how much of the court’s forgiveness was due to the fact that it affirmed anyway. I suspect most panels would be quite reluctant to reverse on a similar record.

The bottom line: don’t rely on the court’s largesse. Include a thorough record.

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Posted in: Appellate Procedure, California Procedure, Record on Appeal

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