Something Fishy about the “Smell Test” and the Standard of Review

Fish2A couple of interesting dissents filed today in a denial of rehearing en banc in United States v. Jenkins, case no. 06-50049 (9th Cir. Mar. 4, 2008). I blogged about the panel decision in this post because the decision resolved an open issue on the standard of review to apply when reviewing an order dismissing an indictment for prosecutorial vindictiveness. My post referred readers to California Appellate Report for Professor Martin’s write-up of the merits.

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.

Notice to One of Multiple Attorneys Suffices to Trigger Deadline to Appeal

It’s not that uncommon to see a party represented in a lawsuit by more than one law office. That party often requests service of documents be made on all of its attorneys.

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.

Comedy Club Finds Out there’s Nothing Funny about Appellate Jurisdiction

Even when an appeal arises from a trademark dispute between two parties in the comedy trade, appellate jurisdiction is serious business, as the appellant learns in Comedy Club, Inc. v. Improv West Associates, case no. 05-55739 (9th Cir. Sep. 7, 2007, amended Jan. 23, 2008).

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.

More on Appealable Denials of Summary Judgment

Wow, who’d have thought two cases in two days involving interlocutory appeals from denial of summary judgment premised on qualified immunity grounds?  Bingue v. Prunchak, case no. 05-16388 (9th Cir. Jan. 15, 2008) actually came out a day earlier than the case in my immediately prior post, but I’m catching up in reverse chronological order, so I saw it second.

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.

Appeal from a Denial of Summary Judgment?

Can’t do it, right? Petition for a writ of mandate, instead. Right?

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.

Mootness with a Local Angle

Feldman v. Bomar, case no. 06-55675 (9th Cir. Jan. 10, 2008) caught my eye because of its local angle (full disclosure: I may also know one of the appellants; I know a fellow Boat School-er named Bob Puddicombe, but I have no idea if it’s the same guy). The case involves a challenge to an environmental action regarding Santa Cruz Island, one of the five islands in the Channel Islands chain just off our coast here in Ventura (links to sites about the Channel Islands National Park, one of the appellees, are here, here and here; the link to Santa Cruz Island is from one of these sites).

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.

Challenge to Post-Plea Sentencing Procedure does not Require Certificate of Probable Cause

After being found mentally competent to stand trial, Rodney Oglesby pleaded guilty to committing domestic violence, aggravated assault and — worst of all, or at least co-equal with his other crimes, at least according to PETA — killing a kitten.  The competency finding was based, per the stipulation of the parties, on just one of the psychiatric reports.  The other psychiatrist opined he was incompetent.

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.

Post-Arbitration Petition Attorney Fee Order is Appealable

In Otay River Constructors v. San Diego Expressway, case no. D049612 (4th Dist. Jan. 7, 2008), the Court of Appeal holds that an order denying an award of contractual attorney fees to a party who succeeded in defeating a petition for arbitration in an action brought solely for that purpose is appealable.

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.

My Article in Santa Barbara Lawyer

I am finally able to provide a copy of my article published in the September 2007 issue of Santa Barbara Lawyer. The article, which grew out of this blog post, is an examination of the historical and existing rules regarding the appealability of an order denying a statutory motion under Code of Civil Procedure section 663 to vacate the judgment and enter new judgment. It also proposes a resolution of the confused law on that issue. (Just in case the Supreme Court was looking for my advice.)

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.

Is a Sentence within the Range Stipulated in a Plea Agreement Appealable?

UPDATE (4/23/08): The holding described in this post was changed by the court’s amended opinion of April 17, 2008).  See my coverage.

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.

Appeal from Non-Appealable Order Does not Deprive District Court of Jurisdiction

Nasciemento v. Dummer, case no. 06-35062 (9th Cir. Nov. 21, 2007) presents a host of jurisdictional issues in a concise opinion. I recommend you read the entire opinion and will concentrate on just one of the issues here, since most of the principles in the opinion are well-established.

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?

Are Stipulated Judgments Appealable?

Well . . . yes and no. Or better yet, mostly no, and occasionally yes. And to discover the difference between those that are and those that aren’t, an excellent starting point is yesterday’s decision in Harrington-Wisely v. State of California, case no. B190431 (2d Dist. Nov. 20, 2007).

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!”

Appeal after Remand to State Court: Was Removal Reasonable?

The Ninth Circuit reminds us in Gardner v. MEGA Life & Health Ins. Co., case no. 06-55045 (9th Cir. Nov. 19, 2007), that even though no appeal lies from an order remanding a removed action to state court, the removing defendant may appeal an order to pay costs and fees imposed in connection with the remand under 28 U.S.C. § 1447(c). Here, it pays off.

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.

Appellate Jurisdiction of a Non-Final Order: Denial of Eleventh Amendment Immunity

Everyone knows the general rule that an appeal lies only from a final judgment. But there are rare exceptions. State of Alaska v. EEOC, case no. 07-70174 (9th Cir. Nov. 8, 2007) illustrates one of them.

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.

Domestic Violence Case Provides Grounds for Review Despite Mootness

It turns out that the Court of Appeal decided two cases yesterday, despite their mootness, on the ground that the issues presented involved important public policies and were “capable of repetition yet evading review.” Both are family law cases. (I wrote about the first in the post immediately preceding this one.)

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 Las Vegas family law attorney 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. Should such a situation repeat, talk to Caryn S. Fennell. 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.”

Read also: Getting Fresno domestic violence charges dropped.

Siblings are Siblings Regardless of Parental Rights Termination

Catherine’s parental rights to Jose were terminated by the court. A few years later, she gave birth to Miguel and Miguel sought sibling visitation with Jose. (Welf. & Inst. Code, § 388.) In In re Miguel A., case no. D050694 (4th Dist. Oct. 24, 2007), the trial court denied the petition for visitation on the ground that Miguel and Jose never concurrently shared a parent because of the termination of Catherine’s parental rights prior to Miguel’s birth, and thus they were not siblings. The Court of Appeal finds error as a matter of law.

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.

Court of Appeal to the Rescue Again

My case law blogging has been weighted heavily toward substantive legal developments this week because I haven’t seen anything really procedurally interesting.  Then along comes County of Orange v. Superior Court, case no. G037562 (4th Dist. Oct. 3, 2007) to make my week.

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.

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Harsh Immigration Dissent

Normally, as a lot of you have figured out by now, I’m a jurisdiction “junkie.” Jurisdiction fuels the disagreement in Ramadan v. Keisler, case no. 03-74351 (9th Cir. Sept. 28, 2007), and the jurisdictional question is interesting (it concerns the effects of the REAL ID act), but I haven’t had time to evaluate it yet.  I hope to get to it.

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.

An Attorney’s Individual Right to Appeal Court Criticism

This post at Split Circuits excerpts a recent Federal Circuit case noting a split among the circuits as to when an attorney in a federal case has a right to appeal separately from his or her client. That decision, Nisus Corp. v. Perma-Chink Systems, Inc., case no. 06-1592 (Fed. Cir. August 23, 2007) notes that while the Seventh Circuit requires the imposition of monetary sanctions before an attorney may appeal a court order critical of the attorney, other circuits, including the Ninth, “permit an attorney to appeal from a judicial order in which the court states that the attorney has engaged in professional misconduct, holding that such a declaration is itself an appealable sanction.”

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.

Order Enforcing Legislative Subpoena is Appealable

Taxes sure seem to be at the heart of a lot of disputes between citizens and their government.  Such is the case in City of Santa Cruz v. Patel, case no. H030689 (6th Dist. Sept. 18, 2007), where wrangling over the right of the government to audit business records to ensure compliance with tax law leads to an opinion on the appealability of orders compelling compliance with legislative subpoenas.

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.

When is an Order not an Order on the Merits?

When it trails the present hearing to another date, for one — at least if it purports to be an order terminating parental rights.  Thus, the court of appeal dismisses an appeal from such an order in In re Q.D., case no. G038343 (4th Dist. Sept. 18, 2007).

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.

Mother Ordered to In-Patient Drug Rehabilitation has Standing to Appeal, but Her Kids Don’t

The mother of three minor children is determined to be incapable of providing regular care and supervision for them.  (Welf. & Inst. Code, § 300.)  The children are placed with their maternal grandmother, with supervised visits from the mother.

The juvenile court orders the mother to complete an in-patient drug treatment program as part of the disposition care plan of Austin women’s drug and alcohol treatment, 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 most heroin detox centers
or 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.”

Bankruptcy Court Order Enjoining Arbitration is Appealable

In Solidus Networks, Inc. v.  Excel Innovations, Inc., case no. 06-17288 (9th Cir. Sept. 7, 2001), the Ninth Circuit holds that an injunction issued pursuant to  11 U.S.C. § 105(a) to stay arbitration to which the debtor is not a party is an appealable order.  The court reasons that the injunction is effectively an extension of the automatic stay (11 U.S.C. § 362).  Since the automatic stay itself is effectively an injunction issuing from the bankruptcy court,and orders denying or granting relief from the automatic stay are appealable, the Ninth saw “no reason to treat the instant injunction differently.”

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

Federal Vexatious Litigant Designation not Immediately Appealable

When a party and his attorney are sanctioned as vexatious litigants and ordered not to file additional complaints without court approval, must they immediately appeal from those orders (the “pre-filing orders”) or appeal instead from the subsequent entry of final judgment?  That was the procedural question posed in Molski v. Evergreen Dynasty Corp., 05-56452 (9th Cir., Aug. 31, 2007).  Evergreen moved to dismiss the appeals, contending that Molski and his lawyers’ joint notice of appeal, filed within 30 days of entry of the judgment, was filed more than 30 days after entry of their respective pre-filing orders.

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.

Expansive Congressional Authorization for Government Appeals in Criminal Cases

In U.S. v. Stanton, case. no. 06-10519 (9th Cir. August 31, 2007), Stanton was convicted by a U. S. Magistrate Judge in a bench trial.  He appealed to the District Court, which reversed his conviction.

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.
More statistics: https://chamberslegal.com.au/what-we-do/criminal-lawyers-perth

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.

Pre-Opinion Settlement Disclosed after Publication of Opinion Requires Vacation of Opinion and Dismissal for Mootness

On June 29, the Ninth Circuit reversed a preliminary injunction order that prohibited National Beverage Corporation “from selling or marketing its line of ‘Freek’ energy drinks in their current containers or containers confusingly similar to” the trade dress of plaintiff Hansen Beverage Company’s “Monster” energy drink. 

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?

Mootness Requires Loss of Existing Controversy, Not Alternate Forum for Resolution of Issues on Appeal

“The ground has shifted considerably since the Marlins filed their original complaint for a declaration of rights.”  If that sounds to you like a court about to examine whether that shifting ground has mooted the appeal, then you have a good ear.

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.)

Putative Class Members Lack Standing to Appeal after Dismissal of Uncertified Class Action

The appeal in Employers-Teamsters v. Watson Pharmaceuticals, case no. 04-56791 (9th Cir. August 16, 200) was from four consolidated actions brought by investment advisor Anchor Capital against Watson Pharmaceuticals, alleging violation of the securities laws.  The trial court considered motions for the appointment of lead plaintiff pursuant to the Private Securities Litigation Reform Act (the “PSLRA”), 15 U.S.C. § 78u-4(a), including a motion from the appellants.  Anchor Capital was appointed lead plaintiff.  After Watson Pharmaceuticals successfully moved to dismiss on Rule 9(b) grounds (insufficiently specific pleading of fraud, Fed. R. Civ. P. 9(b)), the court granted Anchor Capital’s request to dismiss all four actions with prejudice.  The appellants never filed a complaint, moved to intervene, or objected to the requested dismissal.  On appeal, appellants challenged the lead plaintiff ruling.

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 Addition of Fees and Costs to a Judgment Does Not Restart The Clock on Time to Appeal from the Judgment

Torres v. City of San Diego, case no. D049111 (4th Dist. July 25, 2007, ordered published August 17, 2007), presents some curiously unique facts.  The City of San Diego approved a resolution for the indemnification of pension board members against amounts incurred by them in actions relating to their scope of performance as board members.  The board members later found themselves in need of indemnification — because of two lawsuits brought against them by the City!  When their demand for indemnification under the resolution and under Government Code section 995 was refused, the members sued the city.  The members prevailed on summary judgment, and the judgment entered on the motion contained blanks for the fees and costs to be awarded in the indemnification action.  The City filed an untimely appeal from the judgment, which was dismissed.

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.

Ninth Circuit: No Appeal from Order Denying Issuance of Notice of FLSA Collective Action

The collateral order exception to the final judgment rule allows a circuit court to exercise its jurisdiction, even in the absence of an appealable final judgment, if the order appealed from meets certain prerequisites.  Providing a good lesson in the Ninth Circuit’s application of the exception is today’s opinion in McElmurry v. U.S. Bank Nat’l Assoc., case no. 05-36407 (August 8, 2007), in which the plaintiffs, seeking unpaid overtime pay, appealed from an order denying their motion to issue notice of a collective action under the FLSA.

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.