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.

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.)

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.)

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.

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!

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.

Such were the lawyers representing the appellants in Lazy Y Ranch Ltd. v. Behrens, case no. 07-35315 (9th Cir. Sept. 26, 2008).  Lazy Y sued, alleging a violation of equal protection, after its bids for grazing on state land were rejected in favor of other bidders.  The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, arguing that the complaint failed to allege a violation of equal protection and, alternatively, that the defendants had qualified immunity.  Their motion to dismiss relied on extrinsic documents.  Lazy Y moved successfully to strike many of those documents, and prevailed against the motion to dismiss.  Defendants appealed from both the order denying the motion to dismiss and the order striking certain exhibits.

Taking up the question of jurisdiction under the collateral order doctrine, the court reasons:

We begin by briefly addressing Lazy Y’s suggestion that we lack appellate jurisdiction over this interlocutory appeal.  Lazy Y argues that (1) Defendants’ attacks on the order denying the motion to dismiss exceed the scope of the “collateral order” doctrine upon which they allege jurisdiction, and (2) the order granting Lazy Y’s motion to strike documents is unappealable under any doctrine. We disagree.

In general, a party is entitled only to a single appeal, to be “deferred until final judgment has been entered.” [Citation.] However, under the collateral order doctrine, a litigant may appeal from a “narrow class of decisions that do not terminate the litigation, but must, in the interest of achieving a healthy legal system, nonetheless be treated as final.” [Citation.] To be appealable under the collateral order doctrine, a district court decision must (1) be “conclusive,” (2) “resolve important questions completely separate from the merits,” and (3) “render such important questions effectively unreviewable on appeal from final judgment in the underlying action.” [Citation.]

Because qualified immunity is immunity from suit itself and not merely a defense to liability, orders denying qualified immunity may be immediately appealable under the collateral order doctrine, including orders denying a motion to dismiss. [Citation.] Such an order is reviewable to the extent that it raises an issue of law. [Citations.]

Here, contrary to Lazy Y’s suggestion, we do not construe Defendants’ appeal to depend on “their version of the facts.” Rather, Defendants argue that Lazy Y’s allegations of pretext and animus are irrelevant under Equal Protection law, because they have articulated legitimate reasons for rejecting Lazy Y’s bids. In other words, Defendants argue that their articulated purposes end the inquiry and mean that Lazy Y’s claims of actual improper motives fail to establish an Equal Protection violation. They also argue that Lazy Y brings “class of one” claims that are either incognizable or not clearly established in the context of public contracting. These are contentions of law. [Citation.]

Moreover, whether Defendants’ exhibits should have been considered is essentially a legal question, and the order granting the motion to strike was simply part of the Rule 12(b)(6) analysis, as the district court resolved that motion solely to establish the record for the motion to dismiss. [Citation.]

So, appellants got their day in the court of appeals.  Turns out to be for naught, however, as the court affirms.  But at least they had their shot.

First, the background. The issue under review was:

whether a prescribed jail term that constitutes a material provision of a plea agreement conferring as its chief benefit, a grant of probation in lieu of a prison sentence, may be modified by the trial court in the exercise of its authority to modify or revoke probation during the probationary period.

An obscure question? Not if you’re not a citizen, your 365 day jail term makes you eligible for deportation, and Homeland Security picks you up for deportation promptly upon your release from jail. When that happens, you ask the court to amend the judgment nunc pro tunc to require a jail term of only 360 days as a condition of probation. That 5-day decrease takes you out of eligibility for deportation.

The trial court decides it lacks jurisdiction to alter the jail term, the court of appeal reverses, and the People successfully seek review.

But before they decide the question, the Supremes ask for clarification – is the trial court’s order appealable? As you’d expect, defendant says yes, the attorney general says no, but with a twist. Though the AG contends the order is not appealable, he urges that the issue is so important that the court should decide it anyway by treating the appeal as a petition for habeas corpus. And the Supremes oblige.

There’s a second obstacle, though. Segura himself had been released from jail and deported already. The point appears moot. Again, though, the court decides not to let that stop its consideration of the issue:

Nonetheless, the question raised is a matter of public interest and is likely to recur in other cases at a time prior to a defendant’s deportation when the opportunity for review may be limited. [Citation.] Moreover, the parties dispute whether the Court of Appeal’s decision is consistent with, or distinguishable from, the decision in [citation]. Accordingly, for the guidance of courts in future cases presenting similar issues, we have exercised our inherent authority to retain the case for argument and the rendering of an opinion.

Lesson: Don’t let questionable jurisdiction stop you from appealing, especially when it comes to an order after a judgment of conviction. And if you can get that far, the Supreme Court seems more likely than a court of appeal to overlook something like mootness. After all, if the issue is important enough for it to review, there’s a decent chance the court wil find it important enough that mootness shouldn’t stand in the way.

In Melbostad, the trial court granted defendant’s special motion to strike under California’s anti-SLAPP statute (Code of Civil Procedure section 425.16) and entered an order dismissing the complaint “with prejudice.” It subsequently granted a motion for fees brought by one of the defendants, then entered a judgment that “recapitulated” the previous orders granting the special motion to strike and granting the motion for attorney fees.

Appellant challenged the fee award by appealing from this second “judgment” rather than from the order granting the fee motion.  Which is what brought the timeliness of the notice of appeal into play.  His notice of appeal was untimely as meadured from the order granting the fee motion, but timely as measured from the final “judgment.”  Apellant conceded that his time to appeal the order granting the special motion to strike ran from the original order granting that motion (see Code Civ. Proc. sec. 904.1, subd. (a)(13)), but contended that his time to appeal the fee award ran from entry of the subsequent judgment.  Even the respondent agreed.

Not so.  The court finds that because the order dismissing the complaint disposed of all the substantive claims between the parties, it was an appealable judgment under Code of Civil Procedure section 904.1, subdivision (a)(1), and thus the fee award was a separately appealable order after judgment pursuant to section 904.1, subdivision (a)(2).  The subsequent judgment “appears to have served no purpose here, and appellant’s appeal from it does not save his otherwise untimely appeal.”

There was some clever, but unavailing argument from the appellant, and the decision goes into some depth on why the order granting the section 425.16 motion is a “judgment.”  In reading the case, you’ll also discover important differences in appealability based on whether the plaintiff or defendant prevails on the section 425.16 motion.

They can also be employed where appellate jurisdiction — or lack of it— is less than clear, as in People v. Segura, case no. S148536 (Aug. 4, 2008), where the Supreme Court avoids deciding the issue by treating the appeal as a petition for writ of habeas corpus.  Relegating the appellate jurisdiction issue to a footnote, a unanimous Supreme Court set forth the parties’ competing views on appealability, then noted that the Attorney General, who contended the order was not appealable, nonetheless urged the court to review it.  The result:

Nonetheless, the Attorney General requests that we treat the purported appeal as a petition for writ of habeas corpus and, in the interest of judicial economy and because the issue is a matter of concern to many persons other than defendant, decide the case on its merits.  (See generally People v. Banks (1959) 53 Cal.2d 370, 379-381 & fn. 5.)  The Attorney General points out that a probationer in constructive custody may petition for a writ of habeas corpus (In re Stier (2007) 152 Cal.App.4th 63, 82), and in analogous circumstances appeals have been so treated.  (Gallardo, supra, 77 Cal.App.4th at p. 986).  We do so here in the interest of judicial economy and because the issue is of general concern.

Just last week, I wrote about the Supreme Court’s inexplicable avoidance of a squarely presented issue of appellate jurisdiction (albeit in a long ago case), in which they decided the case without either answering the jurisdictional question or even using some device to “save” the appeal, merely because neither party raised it. Here, while the court did not settle the appealability issue, they at least worked their way around it.

Interestingly enough, this nugget regarding appellate jurisdiction comes in a case where the question for review is whether the trial court had jurisdiction to grant a post-judgment defense motion to reduce a jail term bargained for in a plea agreement imposing probation.  The defendant had already served the sentence (released early) but needed the sentence reduced to avoid deportation.  The trial court denied the motion, saying it lacked jurisdiction to reduce the bargained-for term.  The court of appeal reversed.  The Supreme Court reverses the court of appeal:  

We granted review to determine whether a prescribed jail term that constitutes a material provision of a plea agreement conferring as its chief benefit, a grant of probation in lieu of a prison sentence, may be modified by the trial court in the exercise of its authority to modify or revoke probation during the probationary period.  As we shall explain, in this matter defendant was granted probation, for which he otherwise was ineligible in view of the prior conviction allegation, in exchange for entering into a plea agreement comprised of various terms, including confinement in the county jail for a specified number of days.  He knowingly and voluntarily accepted those terms of the agreement.  The trial court’s statutory authority to modify conditions of probation in the exercise of its jurisdiction over a probationer did not extend to modifying a material term of a plea agreement that bestowed the privilege of probation subject to defendant’s service of a specified jail term.  Accordingly, we reverse the judgment rendered by the Court of Appeal.

I’ll get to the Supreme Court in a minute. First, a brief rundown on the issue from the case that led me to raise the question in the title to this post.

In State of California ex rel Department of Pesticide Regulation v. Pet Food Express Limited, case no. C057156 (3d Dist. July 31, 2008), the court of appeal holds that an order enforcing an administrative subpoena is appealable. Borrowing from court of appeal precedent finding that an order enforcing a legislative subpoena is appealable, the court applied the same reasoning to the administrative subpoena in this case. Because the order is the final resolution of the rights between the parties in an original proceeding instituted specifically to enforce compliance — whether that proceeding is deemed a “special proceeding” or an “action” — it is a judgment within the meaning of Code of Civil Procedure section 577 (“A judgment is the final determination of the rights of the parties in an action or proceeding”). It is thus appealable under Code of Civil Procedure section 904.1, subdivision (a)(1).

Interesting enough, but not fascinating. What I did find fascinating was the court’s description regarding the history of the appealability issue.

The court first notes the split of authority at the court of appeal level. While several court of appeal decisions decided such appeals without any explicit consideration of the appealability issue — presumably assuming the appealability of such orders — the remaining courts were split. Some found such orders appealable, others found such orders reviewable by writ only but construed the appeal as a writ petition in the interests of justice.

The amazing thing is that in spite of this split, the Supreme Court had twice entertained such cases and neither time decided the appealability issue. Obviously, the question af appealability was not one of the issues on which the Supreme Court accepted review, but appealability is a jurisdictional requirement that cannot be waived by the parties. The first time around, in Craib v. Bulmash (1989) 49 Cal.3d 475, I can see how the Supremes might not address it if neither party did (Pet Food describes the Supreme Court decision as silent on the issue) because it, like some courts of appeal, could have presumed jurisdiction. But the second time around, in Arnett v. Dal Cielo (1996) 14 Cal4th 4, the Supremes explicitly noted the split in the courts of appeal, decided that the “better view” was that such orders are appealable, but declined to decide the issue because neither party raised it!

Come again? Declined to decide a jurisdictional issue that was squarely presented and on which there was a split of authority in the courts of appeal? And here’s a fact that makes it even stranger: the authority the Supremes relied on as the “better view” had based its decision that the order was appealable in part on the Supreme Court’s previous failure to resolve the issue, i.e., the Supreme Court’s apparent assumption of appealability. In light of all this, the Pet Food court calls the Supremes’ avoidance of the issue “perplexing.” Oh, yes, I’d say so.

Perhaps Pet Food will be the case in which the Supreme Court finally decides the issue. It sure seems to have teed up the issue.

That was the question facing the court in California Dept. of Water v. Powerex, case no. 06-15285 (9th Cir. July 22, 2008), and the answer required it to answer two jurisdictional questions. First, does 28 USC §1447(d) preclude the court from exercising jurisdiction to review the remand order in any fashion? If not, then what is the method by which the order may be reviewed: appeal or writ of mandamus?

Powerex removed to federal court, claiming that the case arose under federal law. The district court denied DWR’s motion to remand and dismissed, finding that the case was within the sole jurisdiction of the Federal Enerergy Regulatory Commission. DWR amended its complaint to request only declaratory relief in order to take the case outside FERC’s jurisdiction and renewed its motion to remand. The district court held that the amended complaint raised only state law contract issues, declined to exercise supplemental jurisdiction, and remanded the case to state court. Powerex appealed, asserting that the complaint still had claims that arise under federal law.

Section 1447(d) appears to deny review of any remand order unless removed under 28 USC §1443 [applicable to certain civil rights cases]. The court notes, however, that section 1447 has been held to prohibit review only of remand orders based on grounds specified in section 1447(c); remands based on other grounds may be reviewed.

That obstacle cleared, the court turned to the question of whether review is by writ or appeal. Here, the court departs from its prior line of rulings, which held that review was by way of writ, because the intervening SCOTUS case of Quackenbush v. Allstate Insurance Co. (1996) 517 U.S. 706, undercut the rationale of the Ninth Circuit’s prior cases. Remand orders resulting from a refusal to exercise supplemental jurisdiction are reviewable by appeal.

Besides a pretty good discussion about the scope of section 1447(d), DWR v. Powerex is worth reading for its explanation of intra-circuit stare decisis; that is, when can a panel depart from circuit precedent that has not been overruled by an en banc decision in the circuit?

In Picklesimer, the court of appeal dismisses an appeal because the appeal is taken from an order denying the defendant’s post-conviction motion for relief from the sex offender registration requirements, which the trial court denied on the ground that it lacked jurisdiction to grant the requested relief.  The court of appeal agrees that the trial court lacked jurisdiction because the motion was not made until after the judgment of conviction became final on the prior appeal from the judgment, and thus the appeal must be dismissed because the order did not affect the defendant’s substantial rights.

A criminal defendant may appeal from “any order made after judgment, affecting the substantial rights of the party.” (§ 1237, subd. (b).) Because the trial court lacked jurisdiction to grant the relief requested by defendant, the order denying defendant’s motion did not affect his substantial rights and was not appealable. (See People v. Chlad (1992) 6 Cal.App.4th 1719, 1725-1726 [because trial court lacked jurisdiction to modify sentence, order denying motion to modify was not an appealable postjudgment order].) The appeal must be dismissed.

It seems to me that this effectively makes appealability dependent on the outcome of the appeal.  The court of appeal’s reasoning suggests that had defendant prevailed on appeal by showing that the trial court had jurisdiction to entertain his motion — or even if he had lost on substantive grounds following a determination that jurisdiction existed — the order would have been appealable.

Thus, I think it would be a grave mistake for defense counsel to read Picklesimer to prohibit appeals from orders denying post-conviction motions on jurisdictional grounds.  The way I read it, appeal is only prohibited if the trial court was correct about its lack of jurisdiction.  And the only way you’ll find that out for sure is if you . . . appeal.

California Attorney’s Fees has a good post, based on an unpublished decision filed last Monday, reminding everyone to appeal separately from a fee award in addition to any appeal from the judgment.  The appellant in the case filed an untimely notice of appeal from the judgment that did not include an appeal from the subsequent fee award, then filed an untimely notice of appeal from the fee award.  Result: untimely appeal, no jurisdiction, appeal dismissed.

In In re AFI Holding, Inc., case no. 06-56621 (9th Cir. June 17, 2008), the Ninth faces for the first time the issue of whether an order removing a trustee in an ongoing bankruptcy case is appealable, and, joining several other circuits, concludes that it is because it conclusively resolves a “discrete issue”:

Although the bankruptcy proceedings may continue, and here, in fact they have, the removal order resolves and seriously affects the substantive rights of the parties to a disinterested trustee and finally determines the discrete issue to which it is addressed—whether the bankruptcy court’s finding of a lack of disinterestedness was cause for the trustee’s removal under [11 U.S.C.]§ 324. 

See my earlier post for reference to a case that gives excellent guidance for evaluating the language of an order and the procedural posture of the bankruptcy case as aids in determining appealability.

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In People v. Arriaga, case no. S149898 (June 2, 2008), the Supreme Court explains the general scheme in a footnote:

After oral argument in this case, we were informed that defendant Arriaga died on March 14, 2008. Although defendant’s death will abate his appeal (see e.g., In re Sheena K. (2007) 40 Cal.4th 875, 879; People v. Anzalone (1999) 19 Cal.4th 1074, 1076; People v. Dail (1943) 22 Cal.2d 642, 659), we exercise our inherent authority to retain this case for an opinion in order to resolve the recurring conflict in the Courts of Appeal regarding whether prohibited firearm enhancements should be stayed or stricken under section 12022.53. (In re Sheena K., supra, 40 Cal.4th at p. 879.)

Cope pled guilty to a single count of possession of child pornography and was sentenced to 120 months imprisonment and lifetime supervised release. His plea agreement stated that he waived appeal of his sentence so long as it met three criteria. On appeal, he challenged the length of his supervised release

The court walks you right through the steps, applying these rules:

• The waiver of a statutory right to appeal is reviewed de novo.
• A knowing and voluntary waiver of statutory rights to appeal a sentence is valid.
• The scope of a waiver in a plea agreement is subject to the same rules of interpretation as used for any other contract (at least, “for the most part”).
• Any ambiguity will be construed against the drafter (usually, the government).

It’s the last of these that allows Cope to reach the merits of his challenge to the length of his supervised release.  Because part of the language defining the scope of Cope’s waiver – which waived appeal of any sentence “within or below the range corresponding to the determined total offense level and criminal history category” – defines a non-appealable sentence in terms of criteria that apply only to the term of imprisonment, and not to the term of the supervised release, the court finds the provision ambiguous and construes it against the government:

As drafted, however, this provision cannot sensibly be applied to a term of supervised release. Under the Sentencing Guidelines, the offense level and criminal history category do not control the term of supervised release, as they do the term of imprisonment. Rather, the type of offense determines the length of the Guidelines range for the term of supervised release. See U.S.S.G. § 5D1.2(a) (Nov. 2002) (specifying supervised release range for Class C felonies); 18 U.S.C. § 3559(a)(3) (Class C felony defined as a crime with a maximum term of imprisonment between 10 and 25 years); 18 U.S.C. § 2252A(b)(2) (2003) (maximum term for Cope’s crime is 20 years). This ambiguity in the waiver provision makes it impossible for us to determine whether the prerequisites for waiver have been met with regard to Cope’s term of supervised release. Because we “steadfastly” apply the rule that “any lack of clarity” in a plea agreement should be construed against the government as drafter, [citation], we hold that this ambiguity in the waiver provision permits Cope to appeal the length of his term of supervised release.

It does Cope little good in the end, however.  While the court entertains his appeal, it affirms the lifetime supervised release.

This was a public nuisance case brought by the People against the owners of a downtown motel under the “Red Light Abatement Law” to abate prostitution activity at the motel. The court entered a permanent injunction, and by stipulation the People were given an extended time to apply for fees and costs. The owners appealed from the permanent injunction, and while the appeal was pending, the People moved for and were awarded fees and costs. The court ordered an “amended judgment” that not only added the award for fees and costs, but

apparently changes some of the language in the prior judgment. The amended judgment appears to contain substantive changes beyond the insertion of the amounts awarded for attorney fees, investigative costs and court costs. For example, the amended judgment purports to add language that “[a]ny future costs relating to enforcement and/or modification of the [j]udgment shall also be recoverable by [respondent] in a sum according to proof.”

The owners filed an “amended notice of appeal” from the “amended judgment,” which the court liberally construed as a notice of appeal from the order awarding fees and costs.

Now, there’s no question the court had power to entertain and rule on the motion for fees. The other amendments to the judgment? Well, not so much:

The trial court acted in excess of its subject matter jurisdiction by entering an amended judgment modifying the terms of the permanent injunction after a notice of appeal had been filed. In Holtum v. Grief (1904) 144 Cal. 521, 524-525, overruled on another point in Phelan v. Superior Court (1950) 35 Cal.2d 363, 371, our Supreme Court said: “The decisions of this court are numerous and uniform to the effect that a judgment or order once regularly entered can be reviewed and set aside only in the modes prescribed by statute. If they have been entered prematurely or by inadvertence, they may be set aside on a proper showing [citation], and if the order as entered is not the order as made, the minutes may be corrected so as to make them speak the truth [citation], but subject to these exceptions the order is reviewable only on appeal, and the decision of the trial court having been once made after regular submission of the motion its power is exhausted–it is functus officio. [Citations.]” (Accord, Fallon v. Superior Court (1939) 33 Cal.App.2d 48, 52-53; see also Stevens v. Superior Court (1936) 7 Cal.2d 110, 113-114; APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 185.)

One thing I like about this case is that it invokes a 104-years-old case without a hint of self-consciousness — and the quotation from that case invokes earlier, but undisclosed, authorities. Sometimes, an old case is the only one — or at least the best one — you’ve got. So long as it’s still good law, use it.

I covered the relevant holding regarding appellate jurisdiction in my original coverage:

The two defendants challenging their sentences in this case claimed that the trial court erred even though the sentences imposed were within the ranges stipulated in their respective plea agreements made under Federal Rule of Criminal Procedure 11(c)(1)(C). Both defendants contended that the trial court’s miscalculation under the sentencing guidelines and its failure to consider all section 3553 factors led it to impose higher sentences than it otherwise should have, and thus the sentences, even though they were within the ranges stipulated in the plea agreements, were “in violation of law,” which would make them appealable under Title 18 United States Code section 3742(a)(1).

The Ninth disagrees, holding that even if the trial court miscalculated the guidelines or erred in applying section 3553, section 3742 does not confer appellate jurisdiction over an appeal from a sentence that is within the range stipulated in a Rule 11 plea agreement. The court points out that the agreements permitted the trial court “full discretion to impose a sentence” within the stipulated range, and thus the defendants received the benefit of their bargains regardless of where in that range they were sentenced.

The Ninth has previously held that a sentence within the statutory guidelines may be reviewed if it is challenged as “unreasonable” under application of section 3553 factors. However, the court refuses to apply the same rule to sentences within the stipulated guidelines of a plea agreement, effectively holding that section 3553 does not apply to stipulated sentencing ranges, at least where the plea agreement does not explicitly require it.

The amended opinion holds that the court has jurisdiction to hear the appeal because a Rule 11 plea in itself deprive the court of appeals of jurisdiction and the defendants did not explicitly waive their appeal rights in their plea agreements.

What to make of the district court’s intent when its order dismissing a complaint does not specify whether or not leave to amend is granted? In Mendiondo v. Centinela Hospital, case no. 06-55981 (9th Cir. Apr. 1, 2008), the Ninth Circuit notes that failure to address amendment means that the court denied leave to amend. Accordingly, it infers that the district court intended the order to finally dispose of the action, and that it has jurisdiction over an appeal from the order under section 1291.

Several weeks ago, I reported on Adaimy v. Ruhl, case no. B193745 (2d Dist. Feb. 28, 2008), in which the court of appeal held that serving just one of multiple attorneys representing a party with a notice of entry of an order denying a motion for new trial suffices to trigger the deadline to appeal.  In this order modifying the opinion without change in the judgment and denying rehearing, the court tacks two paragraphs on to its original opinion that lead me to the question posed in the title of this post.

Though the original opinion refers to an August 7, 2006 “notice of entry of the order” denying the appellant’s new trial motion, the modified opinion refers to a document of the same date titled “Ruling on Submitted Matter,” apparently the same document.  The generic reference has some significance in the context of the new argument that the court quickly disposes of.

Appellant claimed that the “Ruling on Submitted Matter” was not a notice of entry of order within the meaning of rule 8.108(b)(1)(A), California Rules of Court (extending the time to appeal to 30 days after notice of entry of order denying new trial) because it was not titled “Notice of Entry of Order” and was not file-stamped with the date of entry.

The court notes, however, that the words “Notice of Entry of Order” appear at page 6 of the document.  That’s enough.  But is that necessary?  Rule 8.108(b)(1)(A) triggers the deadline for appealing from the service of “an order denying the motion or a notice of entry of that order.”  It’s hard to say exactly what this document was comprised of, but I’m guessing that the “Ruling on Submitted Matter” was not the order itself, but a document with the order attached. If it were simply the order itself, it seems the court could have found it sufficient to trigger the appeal deadline regardless of the presence of the words “notice of entry.”

As for the missing file stamp, the court notes that while a file-stamp must appear on any copy of the judgment served in lieu of a notice of entry of judgment (rule 8.104(a)(1)), there is no such requirement under rule 8.108 for notice of entry or a copy of the order denying a new trial.

The order at issue is an order unsealing documents related to a plea agreement.  The order rather obviously meets both criteria for review under the collateral order doctrine because it “conclusively decides an issue” and “it is effectively unreviewable on appeal from a final judgment,” both for the same reason: once secret documents are made public, there’s no going back.

Judge O’Scannlain, joined by five other judges, dissents from the order denying rehearing en banc, and Chief Judge Kozinski writes a second — and very brief — dissent to highlight Judge O’Scannlain’s criticism of the “smell test” that the district court explicitly applied in granting the motion to dismiss. It’s hard to say how sarcastic the district court was when it made that remark on the record, but Chief Judge Kozinski writes: “A test based on the olfactory apparatus of each district judge, rather than on well-defined and closely cabined legal standards, would give the district courts far too much say over who gets prosecuted and when.”

Clever, but initially I thought that was a bit over the top. After all, the panel did not defer to the district court’s discretion; it adopted a de novo standard for reviewing an order dismissing the indictment on the ground of prosecutorial vindictiveness, then set about a very detailed review of the facts and law. Neither Judge O’Scannlain nor Chief Judge Kozinski take issue with the panel adopting a de novo standard of review, but both appear to believe that the analysis the panel conducted under that standard doesn’t improve much — if at all — on the district court’s “smell test.”

(Public domain image courtesy of United States Fish & Wildlife Service.)

UPDATE (3/6/08): Robert Loblaw at Decision of the Day “smells” a law review article to be spawned from the case.

UPDATE #2 (3/6/08): I noticed after posting the first update that the type offset caused by the photo may have made it look like the excerpt from Judge Kozinski’s opinion (which was intended to be in a block quote format) was my writing. I’ve removed it from the block quote and placed it in quotation marks to clear that up.

Notwithstanding such a request, the court of appeal holds in Adaimy v. Ruhl, case no. B193745 (2d Dist. Feb. 28, 2008) that the mailing of notice of entry of judgment to just one of multiple firms representing a party triggers the deadline for that party to file its notice of appeal.

Adaimy claimed the notice of entry of the order denying his new trial motion was ineffective, thus giving him 180 days from the date of entry of judgment to file his notice of appeal (rather than the shorter period of 30 days from notice of entry). (Cal. Rules of Court, rule 8.108(a).) The court finds, however, that as long as one of Adaimy’s attorneys received notice, it was effective notice and due process was satisfied. Adaimy thus had only 30 days to file his notice of appeal. Since he filed it on the 31st day, his appeal is dismissed for lack of jurisdiction.

A costly lesson in the jurisdictional nature of the notice of appeal.

In this trademark license dispute in which the district court dismissed all claims in its order compelling arbitration, the appellant had 180 days to file its notice of appeal because the district court did not enter judgment on this appealable order.  (Fed. R. App. P. 4(a)(7)(A)(ii).)  But the appellant waited 287 days, until the arbitration was concluded and the arbitration award was confirmed, to do so.

The appellant was probably under the mistaken belief that no appeal was allowed from the order compelling arbitration and that the order could only be challenged on appeal from an order confirming the arbitration award.  But the district court’s simultaneous dismissal of all claims made the arbitration order final for purposes of appeal.

Appellant nonetheless gets some relief in this case, as it partially succeeds on its appeal from the order confirming the arbitration award.

Anyway, in my first post on the topic, I reminded you that one exception to the general rule against interlocutory appeals is that an order denying summary judgment sought on qualified immunity grounds may be appealed.

In Bingue, the plaintiff complained that the court could not review the denial of summary judgment on qualified immunity grounds because the existence of qualified immunity depended on the resolution of disputed material facts and the court’s appellate jurisdiction extends only to questions of law in such appeals.  But there are two  ways around this.  First, the court can review as a matter of law by assuming the truth of the facts set forth by the plaintiff.  Second, the court can determine that the disputed facts are not actually material.

Here, the court uses the former analysis to evaluate whether qualified immunity exists under the facts as asserted by the plaintiff.  And finds that it does.

Not so fast, as we are reminded by today’s decision in KRL v. Aquaro, case no. 06-16282 (9th Cir. Jan. 16, 2008). The case is an appeal from the denial of summary judgment that was sought on qualified immunity grounds, and the court notes that interlocutory appeal is allowed in such cases. The rule dates back to Mitchell v. Forsyth, 472 U.S. 511 (1985), which applied as its starting point the general rule that

a decision of a district court is appealable if it falls within “that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” [Citation.]

In analysis a little too detailed for me to go into here, the Mitchell court concluded that the denial of a claim of qualified immunity fit this test. Read Mitchell, and you’ll learn of a few others.

As luck would have it, the case also provides an appellate lesson on mootness.

The national park and other appellees had approved a plan to replenish the native population of foxes on the island by killing off the non-native feral pig population through a concentrated hunt. Appellants sued to prevent the kill, claiming the pig population should be physically removed from the island or eradicated by more humanitarian means, such as sterilization. Appellants lost on summary judgment in the trial court. Unfortunately (for both the appellants and the pigs), by the time the appeal could be heard, the kill was complete. Appellees moved to dismiss on mootness grounds, and the court grants the motion.

Though a Court of Appeals may exercise jurisdiction over a case rendered moot with respect to injunctive relief where declaratory relief is sought, even then it may do so

only when the challenged government activity is not contingent, has not evaporated or disappeared, and, by its continuing and brooding presence, casts what may well be a substantial adverse effect on the interests of the petitioning parties. [Citation.]

Reviewing past exercises of jurisdiction in such circumstances, the court finds that

[t]he common thread in these cases is that “the violation complained of may have caused continuing harm and . . . the court can still act to remedy such harm by limiting its future adverse effects. [Citation.]

Since the pigs had already been killed, “Appellants have suffered whatever harm could conceivably result from the challenged agency action.”

Appellant’s arguments that there may still be a live pig left on the island and that the court could still reverse or mitigate the damage fail. The former relies on speculation. The latter ignores that a continuing ability to reduce or reverse damage refers to secondary effects. Here, the only alleged harm was the purportedly inhumane eradication of the pig population.

Likewise lacking is appellants’ argument that dismissing the appeal will encourage government actors to fulfill their illegal plans quickly, before the courts can stop them. Although sympathizing with this argument somewhat in the abstract, the court finds it has no application to this case. The appellants waited two years to file suit, had an opportunity to file for temporary restraining order and preliminary injunction (the denial of which had been affirmed in a previous appeal), and the appellees had moved quickly on the eradication because the pigs’ presence was an environmental hazard, not because they were attempting to evade review.

Finally, even though the court may assert jurisdiction in a case “capable of repetition, yet evading review,” that doctrine has no application here because the appellants challenged a single, non-repetitive plan for the pig eradication.

Thus, even though the burden on appellees to establish mootness is “a heavy one,” the appellees here carry it off by proffering proof that the pigs are all gone.

Oglesby fought his court-appointed attorney every step of the way.  He asked for, and was denied, new counsel, then accepted a plea deal offered by the People, in which his lawyer refused to join.  In fact, his lawyer insisted that Oglesby was not competent.  He reminded the court that the second psychiatric report had found him incompetent and that Oglesby’s stipulation to use only the psychiatrist report finding him competent was “a tactical decision at the time . . . because we felt that . . . Oglesby needed to proceed back to trial.”  The court declined to reconsider competence and imposed sentence per the plea agreement.

Oglesby appealed in People v. Oglesby, case no. G037796 (4th Dist. Jan. 7, 2008), claiming that the trial court erred by failing to reevaluate his competence before imposing sentence.  The state argued that the issue was barred on appeal under Penal Code section 1237.5, which requires an appellant to obtain a certificate of probable cause when appealing “from a judgment of conviction” after a guilty plea, because the trial court refused to issue the certificate.

The court neatly sums up the competing arguments and its conclusion at the outset of its discussion:

The People assert Oglesby’s failure to obtain a certificate of probable cause bars this issue on appeal. They assert any challenge to a stipulated sentence implicates the validity of the plea and requires a certificate. Oglesby contends he is not challenging the sentence, but rather the sentencing procedure. He argues the court should have suspended sentencing to inquire into his competence, but did not. We conclude this is a distinction that makes a difference. No certificate was required.

The key for the court is that the appeal raises a post-plea question over whether the court should have held a new competence hearing before sentencing and he was not appealing the conviction or sentence itself.

The court reasoned that where an action is brought solely to enforce a contractual arbitration provision, then a defendant’s defeat of that petition is effectively a final judgment because it disposes of the only issue before the court, even if further litigation is contemplated.

Thus, an order denying an award of attorney fees to the party who successfully opposed the petition for arbitration is appealable as a “special order after final judgment” under Code of Civil Procedure section 1294, subdivision (e). Section 1294 controls, rather than Code of Civil Procedure section 904.1, subdivision (a)(2), which makes appealable an order made after a final judgment, because the former is part of legislatively created “comprehensive procedural scheme to govern arbitration proceedings.”

On the merits, the court of appeal reverses the order denying fees. Since the order denying the petition to compel arbitration disposed of the only issue before the court, the defendant was the “prevailing party” for purposes of Civil Code section 1717, notwithstanding that the parties may later litigate the substance of their dispute in a later action.

I know, I know. Geeksville.

The magazine still is not available online, but I scanned the article and have posted it for download. Click on this title of the article to access the PDF copy of An Appealing Vacation . . . of Judgment: City of Los Angeles v. Glair May Force a Clarification of Appellate Jurisdiction.

By the way, PDFs of a few other past issues of Santa Barbara Lawyer are available here.

The Ninth Circuit rejects such a challenge in U.S. v. Garcia, case no. 05-30356 (9th Cir. Nov. 19, 2007), at least where the plea agreement was not contingent on the sentencing guidelines and the only error asserted was a miscalculation of the guidelines or failure to properly consider the factors in Title 18 United States Code section 3553.

The two defendants challenging their sentences in this case claimed that the trial court erred even though the sentences imposed were within the ranges stipulated in their respective plea agreements made under Federal Rule of Criminal Procedure 11(c)(1)(C). Both defendants contended that the trial court’s miscalculation under the sentencing guidelines and its failure to consider all section 3553 factors led it to impose higher sentences than it otherwise should have, and thus the sentences, even though they were within the ranges stipulated in the plea agreements, were “in violation of law,” which would make them appealable under Title 18 United States Code section 3742(a)(1).

The Ninth disagrees, holding that even if the trial court miscalculated the guidelines or erred in applying section 3553, section 3742 does not confer appellate jurisdiction over an appeal from a sentence that is within the range stipulated in a Rule 11 plea agreement. The court points out that the agreements permitted the trial court “full discretion to impose a sentence” within the stipulated range, and thus the defendants received the benefit of their bargains regardless of where in that range they were sentenced.

The Ninth has previously held that a sentence within the statutory guidelines may be reviewed if it is challenged as “unreasonable” under application of section 3553 factors. However, the court refuses to apply the same rule to sentences within the stipulated guidelines of a plea agreement, effectively holding that section 3553 does not apply to stipulated sentencing ranges, at least where the plea agreement does not explicitly require it.

Garcia leaves open the possibility of getting around its holding with a properly crafted plea agreement. If the plea agreement makes a properly calculated guideline or application of section 3553 an explicit condition of the plea, a defendant may be able to appeal a sentence even if it is within the range stipulated in the agreement. The Ninth Circuit Blog post referenced below offers this advice, along with this caution: “Of course, good luck getting another 11(c)(1)(C) deal that doesn’t include explicit appellate waivers.”

The “Case o’ the Week” post at Ninth Circuit Blog starts by discussing Garcia but transitions to a discussion of the “mess” in the Ninth Circuit regarding jurisdiction to hear sentencing appeals and links to a number of helpful posts on other recent decisions on this topic. Follow the links, and by the time you’re done, you will be eagerly awaiting the Ninth’s en banc opinion in U.S. v. Carty.

Nasciemento purported to appeal from a non-appealable order of the Nevada district court that dismissed some, but not all, defendants and transfered the case to the Montana district court (the “transfer order”). After his appeal was dismissed, but nine days before the mandate issued, the Montana district court entered a discovery scheduling order.

When the Montana court refused to extend time for discovery, Nasciemento filed an appeal from that order (the “discovery order”), which is likewise unappealable. A week later, the Montana Court dismissed Nasciemento’s complaint as a sanction for his failure to appear at a pretrial conference and his lack of preparation for trial (the “dismisssal order”).

Nasciemento claimed that the district court lacked jurisdiction to enter the discovery schedule or dismiss his complaint as a sanction during the appeals pending respectively at the time of each order.

The Ninth disagrees. It holds that since it never had jurisdiction over either appeal, the Montana court, as the transferee court, had jurisdiction to take further action in the case.

Litigants would be wise to assume this rule will apply even where the question of jurisdiction over the appeal is a close call or where it is a question of first impression, because the court draws no distinction between the timing of the two district court orders. When the discovery order was entered, the appeal from the transfer order had already been dismissed (though mandate had not yet issued), so the lack of appellate jurisdiction had been definitely established. The dismissal order, however, was entered just a week after Nasciemento filed his notice of appeal from the discovery order, and thus presumably before that appeal was dismissed for lack of jurisdiction.

The timing of the determination of non-appealability would not appear to affect the outcome. But where appellate jurisdiction may be an open question, might more cautious district judges defer exercising jurisdiction until the issue of appealability is resolved?

Plaintiffs in this case alleged 10 causes of action for damages and one for injunctive relief, alleging that their constitutional rights were violated by overly intrusive x-ray technology (more about that later) used by the California Department of Corrections to search visitors at certain state penitentiaries. The CDC successfully moved for summary adjudication on the class damages claims on the ground that damages were unavailable, leaving only the injunctive relief claim. The court then issued a sua sponte reconsideration order specifying that the summary adjudication order only barred plaintiffs’ class claims to the extent they sought damages. Thus, all claims remained active to the extent they sought injunctive or declaratory relief.

The parties then entered into a stipulated judgment that entered judgment on the claims insofar as they sought damages but, rather than dismiss, enter an injunction, or otherwise finally dispose of the equitable claims, merely referred to the parties’ agreement concerning them. Among other things, the CDC agreed to curtail use of the machines and not to reinstitute use without giving notice that would provide plaintiffs an opportunity to move for a preliminary injunction first.

The stipulated judgment set forth 16 issues for potential adjudication and provided that the court retained jurisdiction “to enforce the terms of the agreement.” It also stated that it was “only appealable as stipulated.”

Plaintiffs appealed on the basis that summary adjudication on the damages claims was improperly granted. The appeal was clearly contemplated by both sides when they entered into the stipulation.

Nonetheless, the court dismisses the appeal for lack of jurisdiction because the stipulated judgment is not an appealable final judgment. A judgment is “the final determination of the rights of the parties in an action or proceeding.” (Code Civ. Proc. § 577.) The failure of the stipulated judgment to determine the parties’ rights on the equitable claims, either by an injunction to perform as agreed, by dismissal, or otherwise, prevents it from being an appealable judgment for purposes of Code of Civil Procedure section 904.1, subdivision (a)(1). Regardless of the parties’ intent in drafting the stipulated judgment in this way, and regardless of their obvious intent to allow appeal on the damages claims, the court lacks jurisdiction as a result of this missing element.

The court goes on to address and reject several arguments raised by plaintiffs.

First, the appeal cannot be “saved” by liberally construing of the notice of appeal. To do so, there must be another appealable order or judgment from which the appeal can be deemed to have been taken. Here, there is no such appealable order or judgment.

Second, plaintiffs could not invoke the exception to the general rule against appealability of stipulated judgments. Recognizing that most stipulated judgments are not appealable, the court concludes that this one does not fall within the exception for judgments entered into to facilitate appeal after an adverse determination of a critical issue. While the summary adjudication on the class damages claims was indeed critical, the failure of the stipulated judgment to dispose of all claims prevents the exception from applying. In other words, even the exception applies only to stipulated judgments that are final. Had plaintiffs, for example, dismissed their equitable claims as part of the stipulated judgment, thereby disposing of all claims, they could have invoked this exception.

Finally, plaintiffs unsuccessfully argued that the 16 issues for potential adjudication anticipated nothing more than proceedings to enforce the stipulation. The court finds these were complex questions of constitutional and statutory law that related to litigation of the equitable claims, not enforcement.

Now, about that technology. The x-ray machines were so sophisticated that they produced “a spectral-like computer image of the body, including an outline of breasts, genitalia and folds of skin.”

This juicy fact led to some great, funny posts. The post at Legal Pad includes a photograph that demonstrates the imaging capability of the x-ray machine (quite amazing) and made me chuckle. The post at California Appellate Report had me laughing out loud.

And I write about appellate jurisdiction. I am such a geek.

UPDATE (11/23/07):   My Dad was looking at this post (thanks for the traffic, Dad!) and told me that the links in the post at California Appellate Report are a bit . . . racy.  You might want to avoid them.  What I found so funny about the post was in the post itself.  Wrote Professor Martin: “I mean, sure, if I enter a prison, and am carrying a package, you can x-ray my package. But x-raying — and looking at the shape and size — of my package?! Crikey!”

MEGA was ordered to pay costs and fees when the action was remanded. It claimed the only non-diverse defendant, an individual, had been fraudulently joined for the purpose of defeating diversity jurisdiction because the statute of limitations had run as to that defendant.

Applying the rule that fees and costs should ordinarily not be awarded where the removing defendant had an objectively reasonable basis for removing, the Ninth Circuit reverses the award of fees and costs. Interestingly, it finds that MEGA had a reasonable basis for removal purely on its own analysis of whether the claim against the non-diverse defendant was barred under California law and without considering one of the reasons MEGA cited for the reasonableness of removal — that on remand, the California court sustained MEGA’s demurrer.

That makes sense, in a way, since reasonableness should be measured as of the time of removal. On the other hand, it seems like the state court dismissal is pretty solid evidence of the objective reasonableness of MEGA’s fraudulent joinder contention.

Plaintiffs were political appointees in the Alaska Governor’s Office who, after their discharge, filed claims with the EEOC against the Governor’s Office alleging various forms of harassment and/or discrimination. The Governor’s Office moved for summary judgment on Eleventh Amendment immunity. The Administrative Law Judge felt he lacked jurisdiction to decide the Eleventh Amendment issue and certified the question to the EEOC. The EEOC, holding that “an agency will not rule on the constitutionality of the statute that it is assigned to administer,” remanded back to the ALJ.

The Governor’s Office appealed from the remand order. The Ninth holds that it has jurisdiction to consider the appeal, even though the remand order is not a final judgment, because an “order denying a state’s claim to Eleventh Amendment immunity is an appealable collateral order.”

By the way, plaintiffs lose despite a federal statute purporting to abrogate state immunity from claims by persons holding government positions similar to those held by plaintiffs. The Ninth finds that the legislation does not meet the requirements for validity set by the Supreme Court because there are no findings of discrimination in such positions that required a remedy.

The merits earn three opinions from a three-judge panel, one in dissent.

UPDATE (11/9/07): Professor Martin gives a nice run-down of the merits and predicts the case is headed not only for en banc review but likely to the Supreme Court. Read why at California Appelate Report.

In the second, Gonzalez v. Munoz, case no. B197860 (2d Dist. Oct. 24, 2007), the issue arises under the Domestic Violence Protection Act, and the Court of Appeal gives greater insight into its decision (footnotes omitted) to decide a moot case:

As this court observed just last year, “It is rare for a Court of Appeal to get a peek into the world of domestic violence proceedings, because these protective orders are nearly never appealed. We know something about these proceedings, not so much from he appellate brief and oral arguments, but because of judicial administration studies and nnovations over the past few years.” (Ross v. Figueroa (2006) 139 Cal.App.4th 856, 861 (Ross).) These sources, coupled with the facts of this case itself, convince us of the potential importance of the ruling below for a significant portion of the state’s population, many of whom, as we noted in Ross and as was true here, are unrepresented n DVPA proceedings. (Id. at p. 861 & fn. 3 [estimated 90 percent of litigants in domestic violence restraining order cases appear pro se].) As we further observed, the high percentage of self-represented litigants (many of whom, again as here, do not speak English) places a special burden on bench officers who “cannot rely on the propria persona litigants to know each of the procedural steps, to raise objections, to ask all the elevant questions of witnesses, and to otherwise protect their due process rights.” (Id. at p. 861.)

Here, the appellant challenged the trial court’s refual to extend, after a noticed hearing, the original ex parte order of restraint and custody. The Court of Appeal finds that the trial court did not even consider relevant factors. Given the magnitude of the error, it is likely that the court decided the case despite mootness in large part because the appellant and amici curaie contended that the trial court’s handling of the proceedings “represents a common misunderstanding by bench officers handling DVPA proceedings in the Los Angeles Superior Court.”

Since section 388, subdivision (b) permits sibling status to be proven by blood, adoption, or “affinity through a common legal or biological parent,” Miguel’s and Jose’s common biological mother suffices to establish they are siblings in the first instance. An order terminating parental rights affects only the relationship between the parent and child; their relationships to other biological relatives remains unaffected. A finding to the contrary would violate strong public policy in support of maintaining sibling relationships.

The fact that Miguel and Jose had no preexisting relationship when their mother’s rights to Jose were terminated — because Miguel had not even been born yet — doesn’t alter these considerations. Their biological relation remains.

The appellate procedure angle: It’s all moot. Because Jose had been adopted, the juvenile court lacked jurisdiction to order visitation with him. But the court decides to answer the question anyway because the case “raises important issues that are capable of repetition but likely to evade review,” and affirms even though it finds the trial court erred.

The County appealed from an order for genetic testing to determine paternity pursuant to Family Code section 7575.  While the appeal was pending, the County filed “a petition for a writ of mandate, prohibition, or other appropriate relief and requested an immediate stay of the trial court proceedings.”  The court of appeal treated the petition as one for supersedeas, and granted relief (i.e., stayed enforcement of the trial court order pending appeal).

After the appeal was fully briefed (apparently), respondent moved to dismiss the appeal on the ground that the genetic testing order was not appealable.  The court of appeal declined to decide the appealability of the order, opting instead to exercise its discretion to treat the appeal as a petition for writ of mandamus:

We do not reach this issue [of appealability] because we exercise our discretion to treat the appeal as a petition for a writ of mandate, in the interests of justice and judicial economy.  [Citation.]  The merits of the issue have been fully briefed by the parties, and this is a case in which the failure to consider the issue at this juncture would be a dereliction of our duties as a reviewing court.  We deny the motion to dismiss the appeal as moot.

The Opening Brief’s Tom Caso poses some logical questions in light of these procedural irregularities:

This raises an interesting question with regard to conversion of the first writ into a writ of supersedeas.  As noted above, the purpose of that writ is to preserve the court’s appellate jurisdiction (Cal Rule of Court 8.112; CCP § 923).  If the court was going to treat the matter as a petition for writ of mandate in the end, was it necessary to convert the first writ into a writ of supersedeas?  Does this give the real party grounds to argue that the court acted in excess of its jurisdiction in granting that writ and the immediate stay?

I suspect that the real party in interest (the respondent, before the court of appeal decided to treat the appeal as a writ petition) wouldn’t get very far with this “excess of jurisdiction” argument.  A party may seek an immediate stay pending the outcome of a writ petition.  Assuming the supersedeas writ somehow dissolves with the conversion of the appeal to a writ petition, that “conversion” apparently did not take place until the court filed its opinion ordering the issuance of the writ of mandamus.  Any stay, valid or not, became moot at that point.

But suppose the court of appeal had issued an order on the motion to dismiss stating that it was denying the motion as moot because it was treating the appeal as a petition for writ of mandamus, then did not decide the petition for several more weeks.  In that situation, the respondent/real party might have a case that the supersedeas writ issued earlier was no longer in effect.

However, I doubt this technical point would avail the respondent/real party.  It seems unlikely that a trial court would treat the writ of supersedeas as having lapsed without an order from the court of appeal.  In addition, I think it highly unlikely the court of appeal would have left that issue unresolved.  Upon issuing its order denying the motion to dismiss as moot and treating the appeal as a writ petition, it most likely would have construed the first writ petition and the converted appeal together as a petition for writ of mandamus with a request for immediate stay and issued an order granting the stay.

The reason I suspect this is that the court of appeal usually goes out of its way to save appeals and its jurisdiction, and will jump through hoops to construe procedure the way that best resolves the case.  If memory serves, in the case I blogged about here, for example, the court stretched to construe the order appealed from as several alternate orders in a vain effort to find appellate jurisdiction.

Technorati Tags: saving appeals, writs

But what caught my eye immediately was the dissent from this denial of a rehearing en banc. Eight judges join Judge O’Scannlain’s dissent, which starts:

In a feat of interpretive creativity, the Court in this case has transformed a discretionary determination of an Immigration Judge (“IJ”) into a question of law, thereby claiming jurisdiction over a swath of immigration cases hitherto beyond our purview.

And later:

The panel . . . proceeded to engage in interpretive gymnastics based upon a manufactured constitutional conflict.

Finally:

[the panel decision] creates a split between our circuit and all seven other circuits to consider the issue . . . But even more troubling than this split, the panel’s decision defies the statutory text, unnecessarily creates a constitutional conundrum, and places within our jurisdiction an array of immigration appeals that Congress does not permit us to review.

Professor Martin at California Appellate Report equitably distributes political motives in the case.

Thus in United States v. Talao, 222 F.3d 1133, 1137 (9th Cir. 2000), the Ninth Circuit held that it had jurisdiction to hear the appeal of an Assistant United States Attorney whom the District Court had found violated rule 2-100 of the California Rules of Professional Conduct. The issue in such cases is whether the order constitutes a “sanction.” In Talao, the court holds that a finding that an attorney violated a governing ethical rule is per se a sanction, and thus the attorney may separately appeal it.

The City sent out a notice to hotel operators that it would be conducting audits to determine operators’ compliance with an occupancy tax ordinance under which hotel operators were required to collect a tax on lodging and remit the proceeds to the City.  The ordinance provided that such audits were permitted and required operators to keep appropriate records.

When the operators of nine hotels refused to open their books, they were served with legislative subpoenas pursuant to Government Code section 37104.  When the operators continued to resist, the City obtained on OSC and the operators claimed the ordinance and subpoenas were constitutionally invalid under a number of theories.  The trial court ordered compliance with the subpoenas, the operators appealed, and their separate appeals were consolidated in this case.

Tackling jurisdiction first, the court notes a split of authority on the appealability of orders compelling compliance with administrative subpoenas issued under Government Code section 11181.  Its analysis of these cases is worth reading.

The court concludes than an order enforcing compliance with a legislative supoena is appealable (case citations omitted):

A judgment is the “final determination of the rights of the parties in an action or proceeding.” (Code Civ. Proc., § 577.) The statutory scheme at hand provides for an original proceeding in the superior court, initiated by the mayor’s report to the judge, which results in an order directing the respondent to comply with a city’s subpoena. Indeed, the compliance order is tantamount to a superior court judgment in mandamus, which, with limited statutory exceptions, is appealable. (Id., § 904.1, subd. (a).) Whether the matter is properly characterized as an “action” (Code Civ. Proc., § 22) or a “special proceeding” (id., § 23), it is a final determination of the rights of the parties. It is final because it leaves nothing for further determination between the parties except the fact of compliance or noncompliance with its terms.

The court specifically rejects the theory that an enforcement order is not final because the subpoenaed party is not aggrieved until he or she has disobeyed the order and been found in contempt.  That rationale makes no sense, of course, because – as the court points out – contempt orders are not appealable. Interestingly, even though it would seem that a contemnor could challenge the underlying subpoena in a writ proceeding, the court apparently feels that is not enough (presumably in light of the rarity with which writ petitions are reviewed on the merits): “review of the underlying order can reliably be had only if that order is appealable.”  (Emphasis added.)

Note, too, that the trial court took up the jurisdictional issue even though the City never sought dismissal on that ground.  I hope you don’t get tired of reading this, but I’ll say it again — never take appellate jurisdiction for granted.

Mother appealed from a purported order terminating her parental rights.  Mother, her attorney, and a Vietnamese translator were at the hearing on her behalf.  Mother, through her counsel, waived her right to a contested hearing.  Only after the court stated its findings and orders from the bench, including an order that parental rights be terminated, did Mother object.  She claimed her waiver of a contested hearing was inadvertent and due to an ambiguity in the translation to Vietnamese.  The trial court, again from the bench, “trailed” the hearing to the following day.  Its minute order did likewise, but not before setting forth “the full panoply of orders and findings normally associated with the termination of parental rights.”

At the next day’s hearing, mother’s counsel moved to set aside the findings of the previous day’s minute order.  The trial court was inclined to set aside the previous day’s order and give the mother a contested hearing on the termination issue, but concuded it could not because the minute order it entered the previous day had terminated appellant’s parental rights and Welfare and Institutions Code section 366.26, subdivision (i) precludes modification of an order terminating parental rights.

Mother appealed from the minute order entered at the conclusion of the first day’s proceedings.  The court of appeal finds that “there is actually no ‘order’ to appeal from” based on the following analysis:

As section 366.26, subdivision (i)(1) reflects, the order terminating parental rights must come at the end of the hearing. This must be so because when the court makes that order, it has no power to do anything further with respect to the issue. The proceeding is finished. Thus, the court cannot both officially make that order and trail the hearing to another day for further consideration.

In this case, as reflected in both the court’s oral statements and its minute order, the section 366.26 hearing did not end on February 8, 2007. Instead, the hearing was trailed for what the minute order characterized as a “366.26 hrg.” the next day. That provision for a further section 366.26 hearing the next day is simply incompatible with the conclusion the hearing had already been completed, and the final order entered, on that first day.

When the totality of the February 8, 2007 minute order is considered, it cannot be reasonably construed as a final order terminating M.’s parental rights. Accordingly, we have no choice but to dismiss this appeal and remand the case for further proceedings to complete the “trailed” section 366.26 hearing, including a ruling on whether or not to re-open and allow M. to contest the termination of her parental rights.

Had the mother’s lawyer asked the trial court at the conclusion of the first day’s hearing to explicitly defer ruling on the termination issue, I think the court would have accommodated that request, especially in light of the court’s willingness to grant relief the following day had it not found its hands tied.

The juvenile court orders the mother to complete an in-patient drug treatment program as part of the disposition care plan and leaves all prior orders in effect, including the children’s placement and supervised visits from the mother.

Do the children have standing to appeal?  In In re Neil D., case no. B195487 (2d Dist. August 28, 2007, ordered published Sept. 17, 2007), the Court of Appeal says “no.”  Since the order appealed from leaves prior orders in effect, including the children’s placement and visitation, the children are not aggrieved parties.

That answer surprises me a little, because it seems to me that in-patient drug rehabilitation would necessarily interfere with visitation.  Even though the court later notes that the mother could continue to visit while in rehab, it does not rely on that fact in determining that the children lack standing.

Mother, on the other hand, has standing to appeal.  Her claim that the in-patient requirement amounts to coerced incarceration raises a constitutional issue, and the order “arguably affects Mother’s task of reunifying with her children.”

The court took up the jurisdictional issue on its own, demonstrating yet again how carefully it guards access to its jurisdiction.

The Ninth says the appeals are timely.  The order against the attorneys is a sanctions order because it was made under the district court’s inherent sanction power.  Since it is well-established (though a relatively recent development) that sanctions orders against attorneys are not immediately appealable, the pre-filing order is not immediately appealable and may be challenged on appeal from the final judgment.

The order against Molski is not immediately appealable either, but that requires a little more analysis.  Although sanctions orders against parties are not generally appealable, the question of whether a vexatious litigant pre-filing order is appealable is a question of first impression. The key is whether the pre-filing order constitutes an appealable collateral order, and the Ninth finds it is not.

No doubt the merits of this case will draw significant attention.  Decision of the Day has a nice write-up about the merits of the decision. DoD begins:

In a decision that will likely make a big splash in the disability rights community, the Ninth Circuit has upheld a district court order declaring a crusader for disabled access to be a vexatious litigation. Plaintiff Jarek Molski travels throughout California visiting restaurants and other public establishments to see if their facilities can accommodate him and his wheelchair. Often they cannot, and Molski sues under the Americans With Disabilities Act, seeking $4000 per day in damages. Many defendants view Molski as a shakedown artist who is just looking for a quick settlement, and jurors often agree.

Go to DoD to read what not to do when filing multiple lawsuits.

The government appealed from the District Court order.  Stanton makes a two-pronged challenge to the government’s right to appeal.

First, he contends that jurisdiction is lacking because the government may appeal only where authorized by Congress and the Criminal Appeals Act, 18 USC §3731, does not explicitly authorize the government to appeal from a district court order reversing a conviction entered by a magistrate and ordering an entry of acquittal.  Right on both counts, says the court, but immaterial.  Section 3731 is expansive, not restrictive, and essentially authorizes appeal by the government so long as it does not violate the Double Jeopardy Clause.  Since reversing the district court here would reinstate Stanton’s conviction without the need for a retrial, the Double Jeopardy Clause is not violated.

Second, Stanton contends that Section 3731 does not authorize an appeal in his case because it only authorizes appeals from the dismissal of an indictment or information, and he was charged by way of criminal complaint.  Once again, the liberal construction of Section 3731 comes to the government’s rescue.  Section 3731 itself provides that “[t]he provisions of this section shall be liberally construed to effectuate its purposes.”  Since the Supreme Court has identified the section’s purpose as “avoiding the creation of nonconstitutional barriers to appeal,” and Stanton identifies no constitutional reason why Section 3731 should not apply in cases where the defendant is charged by criminal complaint, the distinction does not prevent appeal.

The decision gathered significant attention from blogs in the Ninth Circuit.  Seattle Trademark Lawyer and IP Law Observer gave rather objective analyses.  California Appellate Report and Appealing in Nevada were more opinionated about the result, appearing to come down on opposite sides.  (Readers curious to see the packaging of the products can see the appendix to the opinion or, better yet, see the sharp color pictures at the Appealing in Nevada post.)

On July 11, National Beverage issued a press release about the case, in which it trumpeted the Ninth Circuit’s reversal of a preliminary injunction that “’stopped’ the most dynamic product launch over the past several decades!”

So, this seems pretty significant . . . but it appears the court’s effort was for naught. Hansen’s moved just 4 days later (from what I can make out from the docket on PACER) to vacate the opinion. It seems that the parties had settled the case three weeks prior to the court’s filing of its opinion, and the settlement made permanent the injunction that was the subject of the appeal.  Thus, in an August 17, 2007 order, the Ninth Circuit vacates its opinion because it lacked jurisdiction.

Our mandate has not yet issued. It has now been made known to us that, on June 8, 2007, the parties had executed a settlement agreement that, among other things, stipulated that the preliminary injunction that was the subject of the appeal was made permanent.  As a consequence, there was no longer a controversy between the parties over the preliminary injunction at the time we issued our opinion, and the case was moot.

We lacked jurisdiction to decide a moot case. [Citation.]  We accordingly VACATE our opinion and decision of June 29, 2007, and DISMISS this appeal. [Citation.]

From what I can make out of the PACER docket, National Beverage not only opposed Hansen’s motion to vacate but also filed a motion of its own. Though filed under seal, this excerpt from an August 17, 2007 entry in the PACER case summary discloses something about the nature of the motion:

The motion of National “To Preserve This Court’s Jurisdiction and to Quash Order of District Court” is DENIED. The appeal of a preliminary injunction does not deprive the district court of jurisdiction to enter a permanent injunction.

This is certainly an odd situation. This excerpt makes you wonder whether National Beverage entered into the settlement with the intent that the injunction provision would be unenforceable. Also, I’ve tried to figure out why Hansen didn’t move to dismiss the appeal before the opinion was published. Any ideas?

In  Marlin v. AIMCO Venezia, case no. B188407 (2d Dist. August 16, 2007), tenants (or “Marlins”) filed a declaratory judgment action against their landlord for a declaration of their respective rights under the Ellis Act, which allows “landlords who comply with its terms to go out of the rental business by evicting their tenants and withdrawing all units from the market even if doing so would otherwise violate a local rent control ordinance.”  The landlord filed a successful anti-SLAPP motion (Code Civ. Proc., § 425.16) and the case was dismissed.  While the appeal was pending, the landlord initiated eviction proceedings against the tenants and claimed that the eviction proceedings mooted the appeal because the parties’ rights under the Ellis Act could be litigated in the eviction proceedings.

The Court of Appeal disagrees.  The eviction proceedings do not end the controversy between the parties, they merely provide another forum for their resolution:

Defendants’ instigating unlawful detainer proceedings against the Marlins did not moot the controversy between the parties over the applicability of the Ellis Act, the conditions on the tentative tract map and the city rent control ordinances.  Mootness occurs when a case has “‘lost that essential character’” of an existing controversy.  A controversy remains between the parties as to their respective rights.  Indeed defendants concede this in their statement claiming the Marlins can raise their concerns in the unlawful detainer action.  The question is not whether the controversy is moot but where the controversy should be adjudicated: in the Marlins’ declaratory rights action or in the defendants’ unlawful detainer action.  The parties have not briefed this issue and we express no view on it.

(Footnote omitted.)

The court goes on to the merits for a second reason: “Furthermore, we have broad discretion to render an opinion in a case which poses issues of broad public interest and which are likely to recur even if an event occurring during the pendency of the appeal might otherwise render the underlying controversy moot.”

(Footnote omitted.)

The court dismisses the appeal.  The court finds that appellants lack standing to appeal because they were never parties in any of the underlying suits.  They were “merely potential class members in a potential class action suit.”  (Emphasis added.)  The court also finds the appeal moot because the cases were dismissed without a class ever being certified.

The members filed a motion for attorneys fees under Government Code section 800 and Code of Civil Procedure section 128.5.  On reply, they also argued they were entitled to fees under the resolution.  After giving the City an opportunity to file additional briefing on the issue, the court granted the motion, finding that the resolution entitled the board members to fees in the indemnification action.

The City appealed from the order awarding attorney fees.  The board members moved to dismiss the appeal insofar as it purported to challenge the underlying judgment.

The Court of Appeal grants the motion to dismiss, and its opinion invokes a rule it would be good to remember: an amendment to a judgment does not “restart the clock” on the time to appeal from it unless the amendment amounts to a “substantial modification” of the judgment.  It is well-settled that the insertion of the amount of fees and costs into an existing judgment does not constitute the requisite substantial modification.

The City tried to get around this general rule in three ways.  First, it contended that the blanks were left for fees and costs in the two underlying actions for which indemnification was sought and that the insertion of fees and costs from the present action therefore constituted a substantial change.  The language of the judgment itself contradicted this argument.  Second, it argued that because fees were sought under the City resolution rather than under an unambiguous statute or contract provision or the code sections raised in the prayer of the complaint (Government Code section 800 and Code of Civil Procedure 128.5), that the motion raised “new legal issues” and thus the award of fees and costs was a substantial modification of the judgment.  This argument is also easily rebuffed:

The legal basis for a fee award, however, is reviewed in the appeal from the order awarding fees; it does not resurrect a stale appeal of the judgment.  The legal basis for the award has nothing to do with the propriety of the underlying summary judgment.

Finally, the court also easily disposes of the City’s due process argument, which the City based on the fact that the board members only raised the resolution as a basis for the fee award in their reply memorandum.  Since the trial court afforded the city an opportunity for supplemental briefing, there was no due process violation in awarding fees on a basis raised for the first time on reply.

UPDATE (8/21/07): The Opening Brief blogs the case with an eye on the irony of the decision on the merits.

The Ninth Circuit explains the prerequisites for application of the exception (citations omitted):

Jurisdiction exists in only a “small class” of cases that are deemed “too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.”  To qualify as a collateral order suitable for appellate review, an order must: 1) “conclusively determine the disputed question”; 2) “resolve an important issue completely separate from the merits of the action”; and 3) “be effectively unreviewable on appeal from a final judgment.”

The court finds that the order denying the motion to issue a notice of collective action would not be “unreviewable on appeal.”  This standard is met only where “the legal and practical value of [the right at stake will] be destroyed if [ ] not vindicated before trial.”  (Citations omitted.)  The court rejects plaintiffs’ claims that some employees may lose their chance to litigate:

Appellants argue that the statute of limitations will continue to run, and that some employees may lose their opportunity to participate in a collective action if they wait until after an appeal from final judgment. Although employees who may be similarly situated but have not opted in to the action are not bound by its conclusion, and may pursue their actions individually, [citation], we understand Appellants’ concern. However, these arguments have been made in the context of class action suits as well, and it is well established that there is no collateral order jurisdiction over a district court decision to certify or not to certify a class action under Rule 23.  [Citations.]  Although, as we have pointed out, there are differences between a collective action brought pursuant to § 216(b) and a class action brought under Rule 23, those differences are not relevant to whether we may exercise collateral order jurisdiction.

Another interesting point about the case is that the plaintiffs filed an appeal and a writ petition — a practical tactic when the appealability of the order is in doubt.  Here, however, it doesn’t pay off.  The same factors that defeat appellate jurisdiction also defeat the writ petition.

“Notwithstanding any other provision of law, if the court has ordered an issue or issues bifurcated for separate trial or hearing in advance of the disposition of the entire case, a court of appeal may order an issue or issues transferred to it for hearing and decision when the court that heard the issue or issues certifies that the appeal is appropriate. Certification by the court shall be in accordance with rules promulgated by the Judicial Council.”

In Marriage of Lafkas, case no. B189280 (2d Dist. August 6, 2007) the pro per husband appealed from an order on the bifurcated issue of asset disposition.  Conceding that he faileed to obtain a certificate of probable cause from the trial court and move for leave in the Court of Appeal, he nonetheless contended that his appeal should not be dismissed because the court’s grant of wife’s application for attorney’s fees to retain appellate counsel operated as a de facto certificate of probable cause.  The court rejects this contention because neither the Family Code nor the applicable rules provide for de facto certificates.

Here, the rules are the rules.  Don’t try to bend them.  Besides, the court points out that husband still has an appellate remedy by way of appeal from the eventual judgment.

This is a short case worth a read from anyone who wants to gain some quick familiarity with principles of appellate jurisdiction, as the court sums some of those principles up as it begins its discussion of the merits.

In my observation, the tendency to confuse jurisdiction with procedure is way too common.  I recently posted, for example, about confusion between forum selection and jurisdiction in a civil case. 

The Ninth Circuit likewise notes the lamentable prevalence of confusion, citing Kontrick v. Ryan, 540 U.S. 443, 455 (2004):

[c]larity would be facilitated if courts and litigants used the label “jurisdictional” not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court’s adjudicatory authority.

Amen.

Technorati Tags: Ninth Circuit, Federal Courts

UPDATE: (7/31/07): California Appellate Report offers some thoughts on how Judge Callahan’s dissent in this 14-1 decision might affect her chances for a nomination to the U.S. Supreme Court.

Nearly thirty years of disrespect for Clemmer so far hasn’t been reason enough for the Supreme Court to revisit the issue, but the Second District Court of Appeal, Division Seven, may have just forced the Supreme Court’s hand by going out of its way to actually follow Clemmer in City of Los Angeles v. Glair, case no. B190031 (July 25, 2007), dismissing an appeal because the order denying a statutory motion to vacate is not appealable.

There’s more to this case.  Though the Court of Appeal dismissed, it didn’t do so before first trying every which way to find jurisdiction, including a generous characterization of the appellant’s post-trial motion as a motion to vacate.

First, the procedural facts . . .

The City initiated the action below by filing a petition for a workplace protective order (Code Civ. Proc. § 527.8) against Glair that would require him to keep his distance from City employee Mann.  The protective order issued after a bench trial.  Glair, acting in pro per, filed a “Motion for Judgment Notwithstanding the Verdict or in the Alternative for a New Trial” six months later, which was timely because no notice of entry of the restraining order had been served. The motion was denied, and a few months later Glair appealed from the order denying the motion.

The court evaluated jurisdiction on four different grounds, and found it wanting under all of them.

First, the City (!) urged the court to construe the notice of appeal as an appeal from the underlying judgment.  However, because the appeal was filed more than 180 days after the date of entry of the protective order, the court had no jurisdiction to entertain an appeal from the judgment even if it so construed the notice of appeal.

Second, the court considered the order denying the motion for judgment notwithstanding the verdict, but found the motion improper because the trial was to the judge instead of a jury.  (Hot tip: if there’s no “V,” a motion for JNOV is not the way to go.)  Thus, the court holds that it likewise lacks jurisdiction over the order denying the JNOV motion, but holds in the alternative that even if it has jurisdiction, “the only possible outcome would be summary affirmance of the denial of the motion for judgment notwithstanding the verdict on the ground the motion was not valid.”

Third, the court notes that the alternative basis for the motion (new trial) gets Glair nowhere because orders denying a motion for new trial are not appealable.  (An order denying  a new trial motion may be reviewed on appeal from the underlying judgment.)

Finally, the court liberally construes Glair’s JNOV motion as a statutory motion to vacate the judgment and enter a new judgment — even though such a construction was not urged by either party — and follows Clemmer by dismissing the appeal.  The court recognizes that Clemmer has not been followed in the courts of appeal, but says that it is “compelled to follow” it.  After explicitly inviting the Supreme Court to “provide further guidance and eliminate the apparent confusion in the intermediate appellate courts on this issue,” the court also finds support for the nonappealability of an order denying a statutory motion to vacate in Code of Civil Procedure section 904.1 and rule 8.108, California Rules of Court.  The former explicitly authorizes an appeal from an order granting a new trial and an order denying a JNOV motion but is silent on motions to vacate.  The latter identifies various post-trial motions and how their filing extends the time to appeal, but the only motion the rule explicitly contemplates appeal from is a JNOV motion.

Unless and until the Supreme Court clarifies the issue, trial counsel need to assume an order denying a Section 663 motion to vacate is not appealable, at least not in the Second District.  Thus, even where no notice of entry of judgment has been served, counsel should not delay on a motion to vacate.  Since a denial of the motion is not appealable, it is important to have the motion decided before the deadline for appeal from the judgment so trial counsel can still appeal from the judgment if the motion is denied.

A residential subdivision in Laguna Beach is plagued with litigation involving a morass of legal issues and a plethora of parties — both public and private. The litigation was commenced by Three Arch Bay District against the City of Laguna Beach, Charles Kinney (Kinney) and numerous other parties.  Kinney, a homeowner in the subdivision and a lawyer, filed a cross-complaint and a number of amended cross-complaints, against the State of California, homeowner Sherrie Overton (Overton), and many other parties.

Tiny portions of the litigation have been separated out one by one, bifurcated, and set for trial, in order, we presume, to make an unwieldy ball of wax just a little bit smaller. Those tiny portions have come to us in isolation, one appeal at a time.  But Kinney, as one of the primary protagonists in the litigation, keeps complaining that the courts never slay the dragon and put the beast to rest. However, if the litigation is continually brought to us in bits and pieces, we can only address bits and pieces. We cannot address matters that are outside of the record on appeal or issues that do not arise from the portion of the litigation underlying the appeal in question.  When all  of the parties and issues are not put before this court, and we are not provided with all of the evidence necessary to finally address and resolve all ills, it is not possible for us to slay the dragon. Unless and until Kinney or another party to the litigation drags the entire beast before this court, we will continue to provide answers piecemeal — one talon at a time.

Nifty writing to illustrate a simple principle: the court can review only the dispute properly brought before it, and no more, even if there is a lot more background to the case.

Technorati Tags: California appellate practice, judgment, legal writing

Might this practice be challenged someday? It wouldn’t be the first time the California Supreme Court has been called upon to review the appropriateness of “saving” an appeal.

In Walker v. Los Angeles County Metropolitan Transp. Authority (2005) 35 Cal.4th 15, the Supreme Court reversed a judgment of the Court of Appeal dismissing an appeal from an order denying a new trial. The Court of Appeal held that it lacked jurisdiction because the order denying a new trial was not appealable. The Supreme Court reversed. It upheld the practice of “saving” such appeals by construing the notice of appeal as an appeal from the underlying judgment, so long as it is “reasonably clear” that the appellant was trying to appeal from the judgment and the respondent suffers no prejudice. (Id. at p. 18.) The Supreme Court dismissed the respondent’s concern that allowing such saves “would needlessly cause uncertainty” because attorneys are on notice through practice guides and treatises that courts will save such appeals. (Id. at p. 22.) Finally, the Supreme Court relied on the law’s preference for “substance over formalism.” (Id.)

Sisemore-type situations are sufficiently distinct from Walker to invite another challenge. In Walker, the Supreme Court made plain that liberal construction of a notice of appeal to encompass the underlying judgment is constitutionally permissible because appellate jurisdiction is conferred by the existence of the underlying judgment. In Sisemore-type situations, there is no existing judgment; the only judgment is that which the court decides to read into the order. Saving the appeal in this instance requirees a liberal construction of the court order, not of the notice of appeal.

But it would be the unusual case that warrants a Supreme Court challenge. Dismissal of a premature appeal would be of limited utility because it would not affect the appellant’s right to appeal from a judgment entered later. What if the appellant appealed from the order sustaining the demurrer, judgment was thereafter entered, and the time to appeal from the judgment ran out while the appeal was pending? In that situation, there would be an existing judgment, and it is more likely that the Walker analysis would apply.

Counsel would do well to remember that such “saves” have typically been viewed as discretionary, and they should not rely on the practice. It is not hard to find decisions warning of reduced tolerance for appeals from nonappealable orders. (See, e.g., Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2004) ¶¶ 2:262 to 2:263, pp. 2-120 to 2-121 (rev. # 1, 2004).) For this reason, it is somewhat hard to accept the Supreme Court’s dismissal of the concern that such saves create uncertainty.

Doe sought to quash a subpoena directed to an internet company.  The subpoena sought information that would identify the person (Doe) who posted Fuller’s confidential company information on internet message boards.  No lawsuit was pending in California, and Doe’s identity was apparently necessary before Fuller could commence suit in its home state of Minnesota.

In a decision limited to Doe’s motion to unseal the record and briefs on appeal, the court first addressed the issue of appealability.  It found this discovery order was appealable because “the order is ancillary to litigation in another jurisdiction and operates as the last word by a California trial court on the matters at issue.”  Thus, even though the court could readily have chosen to construe the appeal as a writ petition, it found it unnecessary to do so.

This is a great case to remember.  Dire circumstances justifying writ review won’t always be present when a client gets hit with an unfavorable discovery order arising from litigation in another jurisdiction.  Being able to appeal greatly expands the cases in which review may be invoked.

Columbia law professor Michael Dorf uses the Claiborne case as a starting point for a short Findlaw article on the wider subject of the role of the Supreme Court and tensions in justiciability doctrine, A Mootness Dismissal Illustrates the Supreme Court’s Split Personality: Is it a Constitutional Court or a Court of Error? The article describes the underlying issue in Claiborne, examines whether other rules might have saved the Claiborne case, argues that the Supreme Court should not be subject to the same strict justiciability standards of lower federal courts, and compares the more liberal justiciability standards of courts of last resort in some other countries.  All this in a very readable 1900 or so words.

The plaintiff in this adverse possession suit served the defendants by publication, after which default and default judgment were entered.  Four years later, one of the defendants later moved to vacate the default judgment on the ground that plaintiff committed fraud in procuring the order for service by publication and that the default judgment was obtained in violation of her right to due process.  The trial court denied the motion, and defendant appealed.

The court rejected the plaintiff’s contention that the order was not appealable.  The reason: the order gave effect to a void judgment, and any order doing so is itself void and appealable as a special order after judgment under Code of Civil Procedure section 904.1, subd. (a)(2), even if no appeal is taken from the underlying judgment.

Thai Airways contended in its motion to dismiss for lack of subject matter jurisdiction in the district court that it was immune from suit under the Foreign Sovereign Immunities Act (the airline is 76% owned by the Thai government) .  The airline contended that an identical state court action brought by Gupta was res judicata on this issue because it was dismissed for lack of subject matter jurisdiction on FSIA immunity grounds.  It also argued the merits of FSIA immunity independently of its res judicata argument.  The district court rejected both arguments, finding that the prior ruling was not res judicata because it did not go to the merits of the dispute and that an exception to the FSIA applied.

On appeal, however, the airline did not assert the district court erred in its determination that an exception to the FSIA applied.  It relied exclusively on its res judicata argument. 

This turns out to be what splits the dissent from the majority on appeal.

The Ninth Circuit (and its sister circuits) have long recognized the appealability of an order denying a motion to dismiss based on FSIA immunity.  The majority classifies this as such an appeal, and thus asserts jurisdiction under this well-established exception to the final judgment rule.

The issue becomes thornier when you read the dissent, in which Judge Tashima argues that the court must examine “each claim or issue presented separately to determine their jurisdiction on interlocutory appeal.”  Conceding that he would find jurisdiction over the issue of whether the district court erred in finding that the FSIA exception applied, Judge Tashima contends that the res judicata issue is sufficiently distinct to take it outside the rule allowing review of orders denying FSIA immunity:

While it is true that our case law permits an immediate interlocutory appeal from an order denying a motion to dismiss based on foreign sovereign immunity, it is equally well-settled that the denial of a motion to dismiss based on res judicata grounds is not immediately appealable.

***

Although the cases discussing the collateral order doctrine sometimes loosely refer to interlocutory orders as being appealable, in fact, the cases actually analyze the specific claim or issue presented in determining the scope of their jurisdiction on an interlocutory appeal. And each claim presented must independently meet the requirements of the collateral order doctrine in order for it to be considered on interlocutory appeal. Appellate jurisdiction over one claim rejected in a district court order does not confer jurisdiction over all other claims rejected in the same order.(Citations omitted, emphasis in original.)

It seems clear that had the airline appealed on both grounds, Judge Tashima would assert jurisdiction over the merits of the FSIA immunity claim but not over the res judicata argument for the same claim of immunity. 

This is too much hair-splitting for the majority, which responds in a footnote to its statement that “It is from this order that Thai Airways is appealing.”  (Emphasis in original.) The majority contends that the dissent relies on a false premise that the FSIA immunity issue and res judicata issues are distinct.  It says that since the res judicata issue involves and is based solely on FSIA immunity, and is indeed determinative on the issue, the appeal falls within the rule of appealability under the collateral order doctrine for orders denying FSIA immunity.

Whatever the asserted ground of error, the majority has a point that in the end, the order appealed from determined that there was no FSIA immunity.  And that is all they needed to bring it within the well-established exception to the final judgment rule.

The Ninth Circuit holds it has appellate jurisdiction notwithstanding the lack of a final judgment because the stay orders, all of which are indefinite in duration and could last for years, place the plaintiff insurers “effectively out of court.” In doing so, the Ninth joins a majority of other circuits finding appellate jurisdiction in such circumstances, and explains that the indefinite delay poses threats of “denying justice by delay,” lost evidence and faded witness recollections, and irreparable harm to the business plaintiffs, including the risk of going out of business in the interim.

A second lesson for counsel lies in the decision on the merits. The court neither affirms nor reverses, but vacates the stay orders and remands for further consideration by the district court because there is an inadequate record to review the court’s exercise of discretion.

Technorati Tags: California appellate practice, California writ practice, California election law

Technorati Tags: California appellate practice, California appellate procedure