A substantial evidence argument works on appeal

Substantial evidence challenges don’t succeed very often on appeal, so I sat up and took notice when I saw a successful challenge to the sufficiency of the evidence in today’s decision in Martinez v. County of Ventura, case no. B244776 (2d. Dist April 8. 2014). The Court of Appeal reverses a judgment for the public agency defendant that had successfully asserted a design immunity defense at trial to avoid liability for a defectively dangerous roadside condition that contributed to the plaintiff’s injuries. The burden of proof was on the county to establish that they had made a discretionary design decision in installing the type of roadside drain at issue. However, they were unable to produce any plans for the type of drain involved or any evidence that someone with discretionary authority had actually approved the design.

The substantial evidence standard my not require much evidence to affirm a judgment, but it requires enough that a rational factfinder could reasonably reach the conclusion supporting the judgment. Here, “[t]he evidence showed that the maintenance workers simply built and installed the drains in the field as they saw the need for them.”  A county official testified that he had approved the design, but that county did not have discretionary authority under the law, nor was there any evidence that the official that did have discretionary authority had delegated any authority to the testifying official.

Too many parties (and, unfortunately, even some lawyers) do not understand the substantial evidence standard of review. (That’s a subject for another post.) Some write it off from consideration because it is usually very difficult to win. But Martinez reminds us that the argument should not be overlooked just because it is usually difficult.

What happens when standards of review collide?

Sometimes . . . nothing. As in Pielstick v. MidFirst Bank, case no. B247106 (2d Dist. Mar 26, 2014), in which the court was asked to reverse the trial court’s refusal to allow a plaintiff to voluntarily dismiss his suit after the hearing on demurrers had begun. First issue: what standard of review applies?

There is some conflicting authority as to the appropriate standard of review for a request to voluntarily dismiss a case pursuant to section 581. The majority of cases apply a de novo standard, reviewing the issue as a matter of law where it involves the application of undisputed facts to the statute. [Citations.]

However, in Tire Distributors, Inc. v. Cobrae (2005) 132 Cal.App.4th 538 (Tire Distributors), Division Eight of this District held that an abuse of discretion standard is more appropriate, noting that “every court to consider the issue has based its holding on the facts and circumstances surrounding the dismissal, evaluating whether allowing the dismissal to stand would be unfair or would endorse dishonest litigation tactics.”

This conflict doesn’t turn out to be a problem for the court at all, as it concludes: “We find that we need not resolve the apparent conflict between the cases cited above. Under either standard, no error occurred.” (Emphasis added.)

Once again, an appellate court demonstrates that it will not decide issues unnecessary to the resolution of the case.

The consequences of reluctant unanimity in appellate decisions

Through LinkedIn, I ran across an interesting appellate blog, Briefly Writing. In a post yesterday, blogger Michael Skotnicki shared his alarm at learning from the Eleventh Circuit’s chief judge that panel judges that initially dissent will “routinely” change their votes in order to make the decision unanimous (presumably, only once it is apparent that the majority judges cannot be persuaded to come around to the dissenter’s point of view). Skotnicki believes the practice harms appellate counsel because a losing client may think that the unanimity of the decision suggests he got bad advice or bad advocacy during the course of the appeal, and a wining client may think that unanimity is evidence that the lawyer’s assistance wasn’t that valuable.

I think there are broader implications. Skotnicki notes that the chief judge said this practice results from a sense of comity among the judges and the desire to strengthen precedent. I don’t begrudge any judge the desire to strengthen precedent through unanimity — a desire that has been expressed by Chief Justice John Roberts of the United Stated Supreme Court —  but I think that how a panel gets to a unanimous opinion matters a lot. If an initial opinion that splits a panel can be re-drafted in a way that accommodates a dissenter without unduly weakening the central point of the initial majority– a tall order, I’ll grant —  then the resulting unanimity is well-achieved.

However, changing votes based merely on comity and a desire for strengthened precedent are bad, not just for the lawyers, but for the system. Split decisions are significant in at least two common scenarios.

At the federal level, where circuit precedent may only be changed through en banc review, the dissent can have an impact on whether the circuit will rehear the case en banc. Whether en banc review is sought of the split decision itself or of a later unanimous decision compelled by a split-decision precedent, it seems to me that a principled dissent can influence can make the difference as to whether or not en banc review will be granted, and even have an impact on the ultimate decision reached on en banc review.

In California appellate courts , where a panel is free to depart from decisions by other panels, even those in its own district (that may shock some of you non-California lawyers, but it’s true), a well-reasoned dissent may be just what convinces the appellate court that the precedent was wrongly decided.

I cannot imagine that comity and a desire to strengthen precedent are ever the only reasons for a dissenting judge or justice to change his or her vote, in the Eleventh Circuit or anywhere else. Maybe there was more to the chief judge’s comments on that topic?

Thoughts on publication of opinions imposing appellate sanctions for frivolousness

This recent Southern California Appellate News post by Ben Shatz led me to a case that got me thinking further about the utility of publishing opinions imposing appellate sanctions. More than six years ago, I posted in response to a law review article that Ben co-authored with another, which surveyed the cases imposing appellate sanctions. As I recall, the article limited the time frame of the survey to the period since unpublished decisions became available online, since so many of the decisions imposing sanctions are never published. That led me to write:

I was struck by how many of the cited cases were unreported.  The Court of Appeal should want to publicize the conduct that leads to sanctions, because this would inform and deter.  It could be that sanctions are so rare (awarded in approximately 1 out of every 500 cases during the studied period) that the Court of Appeal finds additional deterrence unnecessary.

My thinking at the time was that, as a rule of thumb, opinions imposing appellate sanctions should generally be published, but I hadn’t really taken into account the criteria for publication. The mere imposition of sanctions does not automatically fit within any of the established criteria for publication in rule 8.1105(c)(6), Cal. Rules of Court. I was thinking in the abstract that publication should be encouraged, even if it meant amending rule 8.1105.

However, I think my initial concerns were probably misplaced. Educating attorneys on what is and is not sanctionable was the intent behind my initial thought that sanctions decisions should be published, but is that really needed? Consider the standard for frivolousness:  “whether any reasonable person would agree that the point is totally and completely devoid of merit.” In other words, no reasonable person would agree that the point is not frivolous. Do we need guidance on that?

That standard for frivolousness is at odds with the idea that any sanctions decision would be a close call. Publication of an opinion imposing sanctions for frivolousness might frequently undermine the very basis for the imposition of sanctions, because it would suggest that the imposition of sanctions was a close enough call that it requires an explanation justifying publication under rule 8.1105. Those should be rare occasions, indeed.

If you have thoughts on this, feel free to leave them in the comments.

Make the argument yours, not someone else’s

You represent an appellant in a state court action who claims the action is precluded by a prior federal court action because the plaintiff split his cause of action between the two lawsuits. Your first argument is under the longstanding “primary rights” standard applied by the California courts. Your second is that the court should apply the federal “transaction” standard, which is far more favorable to your position. Only one standard can apply, and you are asking the appellate court to apply a federal standard not previously applied by the California courts. Throw into the mix the fact that the continuing vitality of the California “primary rights” standard was recently reaffirmed by the California Supreme Court, and you can see you’ve got your work cut out for you.

That is the uphill climb that appellant faced in FujiFilm Corp. v. Yang, case no. B243770 (2d Dist., Jan. 24, 2014). The Court of Appeal rejects the invitation to apply the federal “transaction” standard and holds that under the California “primary right” standard, there was no splitting of the cause of action, and thus no preclusion.

One can debate the best way to argue for application of the federal standard — if at all — in such circumstances. Perhaps unique underlying facts or the federal-state dichotomy between the two actions would give an opening to argue that the federal standard should be applied in this particular instance. But nothing like that is mentioned in the Court of Appeal’s rather uncharitable assessment of the appellant’s effort (emphasis mine):

Appellant urges that we apply the “transaction” doctrine of federal law, instead of California’s primary rights theory, to find Fuji wrongfully split its cause of action. We need not linger on appellant’s request, however, because she does not cite any California authority applying the transaction doctrine to define a cause of action. Instead of pertinent case law to support her position, her appellant’s brief relies solely on an eight-and-a-half page block quotation from a 15-year-old law review article. But our Supreme Court as recently as three years ago affirmed that the primary rights theory applies in California. [Citation.] We are not free to depart from binding Supreme Court precedent, and we decline appellant’s invitation to make new law by adopting the federal transaction doctrine. [Citation.]

That’s some quotation!

Was the appellant just trying to tee the case up for review by the California Supreme Court? We’ll see. I’ll update this post if a petition for review is filed.

UPDATE (3/28/2014): The remittitur issued today. No petition for review was filed with the Supreme Court.

Emotional interest falls short of legal standing to appeal dependency ruling

As a general rule, only a person “aggrieved” by a judgment has standing to appeal from it. Is a mother without reunification services “aggrieved” by a judgment granting her 18-year-old child’s request for the termination of dependency jurisdiction? The Court of Appeal answers “no” in In re J.C., case no. G048720 (4th Dist. January 21, 2014), and dismisses the appeal.

J.C., the child of divorced parents, had been living with her father before being declared a dependent of the court a few months after her 15th birthday, when the court found that her father failed to ensure she attended school or get treatment for a psychiatric condition. After treatment at a facility, J.C. was placed in foster care and continued to improve. On her 18th birthday, she asked the court to terminate dependency jurisdiction (though she could have remained a dependent until age 21) so she could return to living with her father. Her mother appealed.

Emotion naturally runs high in dependency cases, but standing based on emotional concern for a child is not enough to confer legal standing to appeal:

Mother asserts she has standing because the termination of jurisdiction resulted in J.C. living with father, and mother worries father will neglect J.C.’s psychiatric treatment, which will damage mother’s relationship with J.C. That interest, while perfectly understandable on an emotional level, does not confer legal standing.

The court does not casually dismiss mother’s interest here. The opinion walks the reader through the standing analysis rather clearly, starting with the proposition that while standing to appeal is liberally construed, only a person “aggrieved” by a decision may appeal from it. That requires a court to “precisely identify [the appellant’s] interest in the matter.”

The court noted that a parent’s interest in the companionship, care, custody and management of a child “is no longer paramount” once reunification services end; at that point, “the focus shifts to the needs of the child for permanency and stability.” Mother this faced an uphill battle to prove standing because her interest had been “significantly reduced” upon the termination of reunification services

But it was the fact that J.C. had turned 18 that ultimately precluded standing. The Court stated that J.C.’s decision to ask for termination of dependency jurisdiction was an exercise of her “rights and responsibilities that come with adulthood” and thus not subject to parental oversight — a point illustrated by the fact that mother was not even entitled to notice of the hearing on J.C.’s request for termination of dependency jurisdiction.

Judge’s disqualification results in new trial for failure to issue a statement of decision

Appeals based on a trial court’s refusal to issue a statement of decision require some soul searching. Usually, a successful appeal will merely result in the case being remanded to the trial court to issue a statement of decision, and the successful appellant may find himself no better off than he was before.

But what if the judge that tried the case is not available to issue the statement of decision? In Wallis v. PHL Associates, Inc., case no. C066545 (3d Dist., October 17, 2013), you will find out. The judge who conducted the bench trial in Wallis was peremptorily disqualified after the bench trial. Since he was thus unavailable to prepare a statement of decision, the Court of Appeal decides that “the only appropriate appellate remedy in this case is a remand for a new trial on the equitable causes of action.”

A standard of review that’s a mouthful

Appellate Attorney Jeanne Collachia is both witty and correct with this statement on her website: “Just like there are three things you need to know about real estate, there are three things you need to know about appeals — Standard of Review — Standard of Review — Standard of Review.” Naturally, I have stressed the standard of review too, with many posts at least touching on subtleties in the standard of review or disputes over which standard applies. Determining the applicable standard can sometimes be tricky. Sometimes, multiple standards apply, each applicable to a different stage of reasoning.

Now, imagine you’re an accountant representing himself on a writ of administrative mandamus, challenging the revocation of your Certified Public Accountant license. You’re not a lawyer, so you would probably appreciate an easy-to-understand, easy-to-apply standard of review. But you wouldn’t get it, as the self-represented plaintiff and appellant in Cassidy v. California Board of Accountancy, case no. G046663 (Fourth District, Sept. 9, 2013, publication ordered Oct. 16, 2013, learned the hard way:

When considering a petition for a writ of administrative mandamus, a court (whether a trial court in the first instance or an appellate court on appeal from the trial court?s decision) considers the administrative agency?s findings and decision to determine whether they are supported by the evidence and may also consider whether the agency abused its discretion in imposing its penalty. (Cal. Administrative Hearing Practice (Cont.Ed.Bar 2d ed. 2010) § 8.107, p. 495.)
Code of Civil Procedure section 1094.5 delimits the scope of the trialcourt?s inquiry. The trial court considers whether the respondent agency lacked jurisdiction; “whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the . . . decision is not supported by the findings, or the findings are not supported by the evidence.” (Id., subd. (b).) In reviewing the findings, the trial court exercises its independent judgment if statutorily required to do so or if the administrative decision involves a “fundamental vested right” (2 Cal. Administrative Mandamus (Cont.Ed.Bar 3d ed. 2011) § 16.52, p. 640), such as revocation of a professional license (Bixby v. Pierno (1971) 4 Cal.3d 130, 146). In such cases, “abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence.” (Code Civ. Proc., § 1094.5, subd. (c).) Nonetheless, “[i]n exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817 (Fukuda).) “The scope of the trial before the superior court is not an unqualified or unlimited trial de novo, but the trial proceeds upon a consideration of the record of the administrative proceedings which is received in evidence and marked as an exhibit.” (Borror v. Department of Investment (1971) 15 Cal.App.3d 531, 537; see also Helene Curtis, Inc. v. Los Angeles County Assessment Appeals Bds. (2004) 121 Cal.App.4th 29, 37 [in Code Civ. Proc., § 1094.5 proceeding, evidence limited to administrative record with the narrow, discretionary exception set forth in subd. (e) for evidence that could not reasonably have been produced or was improperly excluded at administrative hearing].)
An appellate court applies the following standards of review to a trial court?s denial of a petition for a writ of administrative mandamus. First, if the trial court exercised its independent judgment, we review the record to determine whether the court?s factual findings are supported by substantial evidence, resolving all evidentiary conflicts and drawing all legitimate and reasonable inferences in favor of the court?s decision. (Fukuda, supra, 20 Cal.4th at p. 824 [“Even when, as here, the trial court is required to review an administrative decision under the independent judgment standard of review, the standard of review on appeal of the trial court?s determination is the substantial evidence test”]; Bixby v. Pierno, supra, 4 Cal.3d 130, 143, fn. 10 [“After the trial court has exercised its independent judgment upon the weight of the evidence, an appellate court need only review the record to determine whether the trial court?s findings are supported by substantial evidence”].) Second, “to the extent pure questions of law (e.g., jurisdiction) were decided at the trial court upon undisputed facts, a de novo standard will apply at the appellate level.” (Anserv Ins. Services, Inc.. v. Kelso (2000) 83 Cal.App.4th 197, 204.) Third, we review de novo whether the agency?s imposition of aparticular penalty on the petitioner constituted an abuse of discretion by the agency. (Antelope Valley Press v. Poizner (2008) 162 Cal.App.4th 839, 851; Szmaciarz v. State Personnel Bd. (1978) 79 Cal.App.3d 904, 921.) But we will not disturb the agency’s choice of penalty absent “an arbitrary, capricious or patently abusive exercise of discretion” by the administrative agency. (Cadilla v. Board of Medical Examiners (1972) 26 Cal.App.3d 961, 966.)
So, how do you suppose this pro per appellant fared? Unsurprisingly, the Court of Appeal observed that “On appeal, Cassidy in many respects misapprehends the scope of our review.” No doubt, he considered it “legalese.”

Appellate lessons abound in case involving a creative but dubious argument on how a tentative ruling should affect appellate review

Last year, I wrote about a dubious but creative argument by a respondent that a party’s submission to a tentative ruling on a motion forfeited that party’s right to challenge the motion ruling on appeal. As you might remember, that went nowhere.

The latest creative (and dubious) use on appeal of a tentative ruling — again unsuccessful — comes in Meddock v. County of Yolo, case no. C070262 (3d Dist., filed Sept. 10, 2013, ordered published October 4, 2013). Meddock appealed from a summary judgment for the defendant. His argument on how the tentative ruling on the defendant’s summary judgment motion should play into the appellate court’s analysis, and the court’s rejection of that argument, appear in footnote 4 of the opinion:

Quoting the generality that “doubts” about summary judgment should be resolved against granting it (see, e.g., Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502 (Hamburg)) and noting that the tentative ruling was in his favor, Meddock asserts the trial court must have had doubts, and therefore summary judgment was improper. Meddock cites no authority to support this argument. To agree with his argument would defeat the purpose of tentative rulings, that is, to focus the parties on the dispositive issues before the court (see Younger, Cal. Motions (2011–2012) Tentative Rulings, § 4.53, p. 132) and would preclude us from exercising our independent review to determine whether triable issues of fact exist. (See Hamburg, supra, 116 Cal.App.4th at pp. 502–503.) Moreover, the theory on which the tentative ruling was based — that the pavement contributed to the accident — has been abandoned by Meddock, as we have explained ante.

To my mind, the court should have given more emphasis to the point that the appellant’s argument is inconsistent with the independent review of a summary judgment. It does make the point, noting that accepting the appellant’s argument “would preclude us from exercising our independent review to determine whether triable issues of fact exist” — another way of saying that the trial court’s doubts are irrelevant because the trial court’s exercise of discretion is not at issue in the independent review afforded a summary judgment — but it is a shame to see the point buried in the middle of the footnote. As correct as the other points in the footnote may be, they are just gravy.

The other appellate lessons in this case have nothing to do with the trial court’s tentative ruling, but it is unusual to see so many strung together in one case:

  1. Make it or waive it. Meddock had multiple arguments he could have made in opposition to summary judgment, but explicitly disclaimed several at the summary judgment hearing and made no attempt to argue them on appeal, so they were deemed abandoned.
  2. Watch what you concede on a summary judgment motion. Parties sometimes concede facts on summary judgment knowing that the concession will not bind them at trial. But why do so when the moving party fails to provide supporting evidence for them? Here, the decision notes that both sides made unsupported factual assertions, but the court accepted them as true since the parties agreed on them.
  3. Keep your standards of review straight. Appellant wasn’t the only party to advance an argument inconsistent with the standard of review. The respondent argued that evidentiary gaps in the record must be construed in its favor. This argument apparently relied on the general rule that an appellate court “must draw reasonable evidentiary inferences in favor of the judgment,” but that rule has no application in the independent review afforded a summary judgment.

Supreme Court reverses Kurwa v. Kislinger – there are limits to the manufacture of appellate jurisdiction

Even most non-appellate lawyers are familiar with the “one final judgment rule,” under which a judgment is not appealable unless it disposes of all of the claims between the parties to the appeal. Plaintiffs who have had some (but not all) claims dismissed after a demurrer or summary adjudication either have to defer appellate review of the ruling until the remaining claims have been resolved, or dismiss the remaining claims with prejudice so as to create a judgment that disposes of all claims and is thus appealable. (Of course, the plaintiff also has the option of petitioning for writ relief from the summary adjudication order.)

In Kurwa v. Kislinger (2013) 57 Cal.4th 1097, the parties tried to preserve their defamation crossclaims against each other by stipulating to dismiss them without prejudice and waiving the statute of limitations, so that they could be revived after the appeal of the ruling knocking out the plaintiff’s claim for breach of fiduciary duty and related claims. Prior to the Court of Appeal decision in Kurwa, a consistent line of cases starting with Don Jose’s Restaurant, Inc. v. Truck insurance Exchange (1997) 53 Cal.App.4th 115 had held that such an arrangement did not create an appealable judgment because there was no finality in the disposition of the dismissed claims. The Court of Appeal in Kurwa, however, departed from this reasoning and concluded that dismissals without prejudice and with waivers of the statute of limitations create an appealable judgment because there are no longer any claims “pending” in the trial court.

The Supreme Court reverses in a unanimous decision:

We disagree with the appellate court below, and agree with Don Jose’s and the decisions following it, including Abatti [v. Imperial Irrigation Dist. (2012) 205 Cal.App.4th 650] . When, as here, the trial court has resolved some causes of action and the others are voluntarily dismissed, but the parties have agreed to preserve the voluntarily dismissed counts for potential litigation upon conclusion of the appeal from the judgment rendered, the judgment is one that “fails to complete the disposition of all the causes of action between the parties” (Morehart [v. County of Santa Barbara], supra, [1994] 7 Cal.4th [725] at p. 743) and is therefore not appealable.

The Court of Appeal below was correct that causes of action the parties have dismissed without prejudice are no longer pending in the trial court, in the sense that no immediate action remains for the trial court to take on such counts. But where the parties, by waiver or agreed tolling of the statute of limitations or a similar agreement, have arranged for those causes of action to be resurrected upon completion of the appeal, they remain “legally alive” in substance and effect. (Hill v. City of Clovis, supra, [1998] 63 Cal.App.4th [434] at p. 445.) The rule of the lower court, under which a voluntary dismissal is considered to dispose of a cause of action regardless of any agreement facilitating its future litigation, elevates form over substance and permits parties to evade the one final judgment rule of section 904.1, subdivision (a), through what the Don Jose’s court aptly called an “artifice.” (Don Jose’s, supra, 53 Cal.App.4th at p. 116.)

The Abatti case mentioned by the Supreme Court was decided after the Court of Appeal had decided Kurwa and represents a middle ground. In Abatti, judgment was entered after the plaintiff dismissed claims without prejudice and without any waiver or tolling of the statute of limitations. This absence of an agreement assuring that the dismissed claims could be litigated following the appeal was a distinguishing feature in the eyes of the Abatti court:

[C]laims that are dismissed without prejudice are no less final for purposes of the one final judgment rule than are adjudicated claims, unless, as in Don Jose’s Restaurant and its progeny, there is a stipulation between the parties that facilitates potential future litigation of the dismissed claims.

Interestingly, the Supreme Court specifically states that it agrees with Abatti even though its Kurwa opinion explicitly limits the issue before the court to those cases that, unlike the dismissals without prejudice in Abatti, include stipulations to keep the dismissed claims alive:

This case poses the question whether an appeal may be taken when the judgment disposes of fewer than all the pled causes of action by dismissal with prejudice, and the parties agree to dismiss the remaining counts without prejudice and waive operation of the statute of limitations on those remaining causes of action.

In an amicus brief, the California Academy of Appellate Lawyers raises a point that has always bugged me. The one final judgment rule is frequently cited as a means to avoid piecemeal litigation, but that is only true of litigation in the Court of Appeal. It necessarily means that cases may have to be tried piecemeal. The Academy argued that a rule on finality should promote efficiency at the trial level as well as the appellate level by allowing the parties “as much autonomy and choice as possible.” The Supreme Court isn’t buying it:

We are not free, however, to adopt whatever rule we find best balances the interests of party autonomy or trial and appellate efficiency. Unlike jurisdictions that provide for trial courts’ selective entry of final judgments on fewer than all claims for relief (see, e.g., Fed. Rules Civ.Proc., rule 54(b), 28 U.S.C.) or for interlocutory appeals in the discretion of the reviewing court (see, e.g., 28 U.S.C. § 1292(b)), California law provides no case-by-case efficiency exception to the one final judgment rule for appealability. Where unusual circumstances justify it, review of interlocutory judgments may be obtained by petition for writ of mandate, but not by appeal. ([Code Civ. Proc.,] § 904.1, subd. (a); Morehart, supra, 7 Cal.4th at pp. 743-744.) The question is thus not what rule will best serve litigants and trial courts, but what rule is most consistent with the policy against piecemeal appeals codified in section 904.1 and vindicated in Morehart.

I think the court paints a somewhat rosy picture of writ review here by referring merely to “unusual circumstances” without mentioning that those circumstances are found present in less than 10% of writ proceedings. Nonetheless, a prospective appellant who values the claims disposed of by the trial court more than his remaining claims, but wants to keep all options open as long as possible, should consider first seeking writ review and, if unsuccessful, then dismiss his remaining claims with prejudice and appeal from the ensuing judgment

“Normally, we would begin by . . . ” — departures from the usual analytical framework on appeal

Any time a Court of Appeal decision starts its analysis with “normally,” you should sit up and take notice. It gives you a hint that the case may suggest ways for you to depart slightly from the normal analytical framework when the right case presents itself.

This time, the tip comes from Liberty Mutual Ins. Co. v.  Brookfield Crystal Cove, LLC, case no. G046731 (4th Dist., August 28, 2013, modified September 26, 2013). The plaintiff was an insurer that sued a contractor in subrogation to recover costs for its insured’s relocation expenses incurred while repairs were being made to property damage resulting from construction defects. The contractor successfully demurred on the ground that the complaint was barred by the limitations period in the Right to Repair Act (Civ. Code, § 895 et seq.). On appeal, the insurer contended that the Right to Repair Act did not abrogate common law remedies for construction defects resulting in actual property damage.

The case presents a straight-up question of statutory construction: is the Right to Repair Act the exclusive remedy for construction defects that result in property damage?

Typically, one begins analysis of statutory construction with the language of the statute itself, but Liberty Mutual suggests there may be cases where the most persuasive argument may be to start elsewhere:

The issue before us is whether Liberty Mutual’s complaint in subrogation falls exclusively within the Right to Repair Act, and therefore is time-barred. We start with a brief history of the Act and identification of the problem it was intended to address. Normally, we would begin by analyzing the language of the statute. In this case, however, the language of the statute can be best considered with an understanding of the Act?s impetus and purpose.

(Emphasis added, footnote omitted.)

Here, what made the legislative history such an attractive starting point for the appellant and the court was that the intent to overturn case law was explicitly stated in a committee report on the bill. From there, it was easy to explain the limited intent of the statute and prevent a broader application that would require dismissal of the appellant’s complaint. The judgment of dismissal was reversed.

Lesson learned: just because there are particular analytical rules that usually apply, don’t feel hidebound.

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

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

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

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

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

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

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

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

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

Had plaintiffs attempted to enforce the judgment in California by propounding postjudgment special interrogatories seeking defendants’ financial information, including information about assets defendants may have in New York, the disentitlement doctrine would have applied to any noncompliance with the California trial court?s orders compelling responses to those interrogatories.  For purposes of the disentitlement doctrine, there is no meaningful distinction between New York trial court orders and California trial court orders related to enforcement of a California judgment. The orders of the New York court in issue were based solely on a California money judgment and were intended to aid in the enforcement of that judgment. Thus, by violating those orders, defendants are obstructing and frustrating the enforcement of a judgment of this state, while at the same time seeking relief concerned that judgment in this court. Under the well-established disentitlement doctrine, defendants are not entitled to the relief they seek on appeal.

UPDATE: Interestingly, the court stayed its dismissal for 30 days to allow Ampton to seek reinstatement of the appeal, but cautioning that it was not suggesting or implying how it would act on such a request.  So, naturally, Ampton did so, but only at the last minute and not very well. Ampton filed an initial motion that provided only an unsworn account of Ampton’s purported compliance with the New York Subpoena, a “supplement” to that motion regarding further New York proceedings, a petition for rehearing and a “renewed” motion for reinstatement (this time supported by sworn declarations),  and finally a “supplement” to the renewed motion, with a flurry of orders from the New York court, all for naught. The Court of Appeal found that Ampton failed to prove that it had ceased playing games:

Defendants have had two months since our initial opinion to provide us with a competent and unequivocal showing that they had complied fully with plaintiffs’ information subpoena and that the New York court had made an express finding of full compliance. Defendants and plaintiffs have both provided their versions of the oral proceedings before the court, but apparently those proceedings were “off the record.” Had the New York trial court, knowing of our deadline, considered our dismissal order inequitable, that court presumably would have acted upon the pending motions before it with respect to compliance with its orders. Moreover, it was defendants’ burden to provide us with an adequate record, and that would include a transcript of a proceeding “on the record” or a reasonable substitute for such a transcript. (See Cal. Rules of Court, rule 8.137.) Defendants have been making last-minute efforts to avoid the disentitlement doctrine, but these efforts are too little and too late.

If you are unable to stay the judgment pending appeal, use every legitimate means at your disposal to forestall enforcement (the requirements for many judgment enforcement proceedings are highly technical, and noncompliance by the judgment creditor can delay things for a while), or try to settle the case (though admittedly, an appeal without a stay of the judgment does not create a lot of leverage), but don’t play games with judgment enforcement. The best appellate argument in the world is worthless if the Court of Appeal dismisses your appeal under the disentitlement doctrine before it ever reaches the merits.

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

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

The mysterious "doghouse"

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

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

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

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

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

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

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

Don’t get snide on appeal

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

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

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

Seemingly emboldened by [the trial court’s description of the plaintiff’s summary judgment opposition papers], defendants’ brief here begins this way:

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

Uh-oh. Pot, meet kettle:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Huge Error, No Prejudice

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

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

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

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

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

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

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

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

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

If the party seeking review by filing an appeal to the superior court is unsuccessful in the appeal, the court shall determine the costs and reasonable attorney’s fees incurred by the other parties to the appeal, and assess that amount as a cost upon the party filing the appeal.   An employee is successful if the court awards an amount greater than zero.
The Court of Appeal finds that the employer has no right to fees under these circumstances. Although a timely appeal would have nullified the initial award in favor of the employee, here the employee still had an enforceable award of wages because the untimeliness of her appeal meant that her initial award was never nullified. Thus, even though she recovered nothing on the appeal, she still had a recovery that prevented her employer from recovering fees for the appeal.

As you might expect, the court was careful to point out that its decision applies only to jurisdictional dismissals, and leaves open the question of whether fee shifting would apply when a timely appeal is dismissed on another ground.

Attorney fee review standard isn’t always abuse of discretion

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

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

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

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

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

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


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

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

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

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

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

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

Just what are you appealing from, anyway?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Some basics about briefing

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

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

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

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

Appellant’s other sin was even more basic:

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

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

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

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

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

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

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

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

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

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

California Supremes keep Ninth Circuit Prop 8 appeal alive

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

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

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

Related post at Ninth Circuit Blog of Appeals.

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

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

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

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

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

Don’t jump to conclusions on the standard of review

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

When the Attorney General agrees with you

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

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

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

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

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

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

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

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

Make the record easy on the eyes, please

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

Dear Court Reporters,

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

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

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

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

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

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


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

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

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

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

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

Review of Remand Orders: One Man’s Obsession

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

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

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

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

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

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

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

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

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

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

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

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

You’ve read warnings from me time and again that the notice of appeal deadline is a jurisdictional limitation. Miss it, and you’re stuck. There is no relief. Orange county DUI defense lawyer will successfully handle such a case.

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.)