Category Archives: Appellate Procedure

August 5, 2008

Flexibility on Appellate Jurisdiction

“Jurisdiction” and “flexibility” are terms that don’t really go together . . . most of the time.  But I’ve taken note before of the willingness of California appellate courts to “save” appeals through various devices, such as a generous construction of the notice of appeal, or treating an appeal from a non-appealable order as a writ petition.  In fact, these devices are used to save appeals from plainly non-appealable orders.

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

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

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

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

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

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Posted in: Appellate Jurisdiction, Appellate Procedure, California Procedure, Jurisdiction

August 1, 2008

Why Did the Supreme Court Punt on a Jurisdictional Issue?

Regular readers know I am a jurisdiction geek, and today I get to sink my teeth into a jurisdictional oddity. Well, not a jurisdictional oddity so much as the odd behavior of the Supreme Court with respect to a jurisdictional question.

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

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

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

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

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

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

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

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Posted in: Appellate Jurisdiction, Appellate Procedure, California Procedure, California Supreme Court

July 28, 2008

Lawyers Must Eat — Getting Your Attorney Fees on Appeal

You’d be hard pressed to find a better overview of federal appellate review of attorney fee awards than Moreno v. City of Sacramento, case no. 06-15021 (9th Cir. .July 28, 2008). Judge Kozinski’s analysis begins with the truism “lawyers must eat,” then goes on to analyze the district court’s attorney fee award under 42 U.S.C.§ 1988, and thus looks at the issue from the perspective of the policies underlying attorney fee awards in civil rights cases.

Of particular interest is the section on fees for the appeal. Here’s a two-question quiz.

Do you know the proper forum for making your application for fees on appeal? If you said the court of appeals, you’re wrong! Fee applications are brought in the district court after remand.

You probably already know that the standard of review on a fee award is abuse of discretion. Is it any different when reviewing an award for fees on appeal? Well, yes and no. The award is still reviewed for abuse of discretion but the court of appeals will “look more closely” at fee awards involving appeals. Call it an enhanced review for abuse of discretion, if you will.

The district court trimmed the appellate fees by a third! But it did so without offering a good explanation . . . a problem that pervaded its fee determination. It’s interesting to see how Judge Kozinski analyzes the time and fees on appeal versus the time and fees for a summary judgment motion in the case:

The district court noted that plaintiff’s counsel spent twice as long on the appeal than on the summary judgment, but this does not mean the additional time spent on appeal was unjustified; after all, plaintiff lost claims at summary judgment that he won on appeal. More fundamentally, preparing summary judgment motions and appeals are not commensurate tasks, though they have some elements in common. What matters is whether spending more time winning on appeal than losing on summary judgment was an imprudent use of hours. The district court points to nothing to support the conclusion that it was.

Then there is the discussion of the “cost effectiveness of various law firm models” for staffing cases, and which personnel get assigned which tasks at which rates. As I read through it, I thought, “All this concern over hourly rates and who did what! What would the court do if the firm charged a flat fee and didn’t keep track of anyone’s hours?”

I haven’t seen a fee decision based on a flat fee without time records. But the courts still appear to be in love with the “lodestar” system: reasonable hourly rate times reasonable time expended. Which is why I tend to keep time records even when I charge a flat fee.

Now I’m really curious. If anyone knows of a case analyzing the propriety of a fee award based on a flat fee, please send me the cite.

UPDATE (8/7/08): California Attorney’s Fees examines some of the standards employed by the Moreno court to fees incurred prior to appeal, notes the significance of the case, and responds to my query about flat fees.

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Posted in: Appellate Procedure, Attorney Fees, Federal Procedure, Standard of Review

July 25, 2008

Appealing a Remand Order, and Intra-Circuit Stare Decisis

When I was in BigLaw, removing a case to federal court seemed a virtually automatic response to any suit that we believed implicated federal jurisdiction. If the federal district court refuses to exercise supplemental jurisdiction and remands the case back to the state court, how do you contest that ruling?

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

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

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

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

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

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Posted in: Appellate Jurisdiction, Appellate Procedure, Federal Procedure, Removal

July 24, 2008

What Constitutes Extrinsic Evidence that Changes the Standard of Review?

Well-established, seemingly clear principles like contract interpretation being a matter of law (absent ambiguity requiring extrinsic evidence to resolve), and de novo review of legal questions aren’t always so clear in practice. California National Bank v. Woodbridge Plaza, LLC, case no. G038623 (4th Dist. May 30, 2008, ordered published June 20, 2008) is a case in point.

At issue was the meaning of a lease provision that determined the maximum rent for the extended term. The landlord, who prevailed at the bench trial, contended that the court’s interpretation of the lease was governed by substantial evidence review because there was conflicting opinion testimony on the meaning of the lease provision.

Sound disingenuous to you? Me, too, and the court isn’t buying it, either:

We review a trial court’s construction of a lease de novo as long as there was no conflicting extrinsic evidence admitted to assist in determining the meaning of the language. [Citation.] If a lease provision is ambiguous, parol evidence may be admitted as to the parties’ intentions if the language is reasonably susceptible to a suggested interpretation. [Citation.] If there is conflicting evidence necessitating a determination of credibility, we use the substantial evidence test. [Citation.]

Here, not only was there no conflicting extrinsic evidence, there was no extrinsic evidence at all as to the intent of the parties about paragraph 3. Defendant points to testimony of the parties’ “differing interpretations of the lease.” But an interpretation of the lease is not the same as evidence of intent when negotiating or executing the lease, and there was no evidence of the latter. Thus, we construe the meaning of the lease de novo.

But the court does buy the trial court’s interpretation of the lease, so the landlord wins anyway.

(Yes, this case is old . . . by blogging standards, anyway. I turned up this post in my drafts queue.)

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Posted in: Appellate Procedure, Contracts, Standard of Review

July 16, 2008

It Turns Out that Your Appendix on Appeal is Quite Similar to the One in Your Abdomen

“Your appendix is a vestigial organ with no known function but it will kill you if it goes awry.”  That’s the clever moral Professor Childress of Legal Profession Blog draws from the story of the attorney who inadvertently submitted an appendix that included his margin notes commenting on the court’s prior opinion.  His post also has additional links regarding the story.

Of course, your appendix on appeal does have a function (though I can understand how the temptation to write that line was irresistible to Professor Childress).  But the larger point remains: proof your appendix as carefully as you do your brief.

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

July 7, 2008

Patrol Cars are Traffic, Too

Federal Protective Service vehicle.Image via Wikipedia

In People v. Logsdon, case no. G038366 (4th Dist. May 28, 2008, ordered published June 24, 2008), the defendant contended that the officer following him on an otherwise nearly deserted street in the middle of the night lacked cause to stop his vehicle after defendant crossed several lanes of traffic without signaling. Defendant contended that in the absence of other traffic, his unsignaled lane change was a safe move.

He forgot about the patrol car following him! The court holds that the officer who made the stop constituted traffic that needed warning of the lane change.

There’s an interesting angle to this case from an appellate perspective and from a writing perspective.

Writing first. When the defendant claimed that the patrol car was too far away to be affected by the unsignaled lane change — as evidenced by the fact that the officer neither braked nor swerved — the court discounted thre argument with an unintentionally (?) funny choice of words to explain that the defendant’s lane change did not actually have to alter the patrol car’s course to be unsafe (emphasis added): “Actual impact is not required by the statute; potential effect triggers the signal requirement.” Glad to know a collision isn’t required.

Next, the appellate angle. The trial court found that defendant’s lane change affected a car traveling about 100 feet behind him (apparently referring to the patrol car) and decided not to disturb the ruling without resolving the issue of whether it was a factual finding or a discretionary one (emphasis in original):

The trial court found that a vehicle within 100 feet of Logdon’s car, traveling in the same lane and at the same speed, was affected by the lane change. Moreover, the Legislature has declared its opinion that vehicle signals are needed within 100 feet of any turn. (See Veh. Code, § 22108.) Whether this finding is a discretionary finding or a finding of fact, we must accept this one. Factual findings are to be accepted if substantial evidence can be found in the record to support them [citation], and discretionary rulings must be upheld unless an abuse of that discretion is shown. (See People v. Bishop (1993) 14 Cal.App.4th 203, 212-213 [abuse-of-discretion standard appropriate when lower court “is in the best position to determine the genuineness and effectiveness of the showing . . . .”].) Under either standard, we must accept this finding.

Before you do battle over the nature of a finding and thus the applicable standard of review, make sure the distinction makes a difference.

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Posted in: Appellate Procedure, Criminal Procedure, Legal Writing, Standard of Review

July 2, 2008

Keep Appealing Orders Denying Post-Conviction Motions on Jurisdictional Grounds

People v. Picklesimer, case no. C056385 (3d Dist. July 2, 2008) reminds me of one of those time travel conundrums.  You know, the ones that go something like (to pick a grisly example), “If you go back in time and kill your mother before she even gets pregnant with you, how can you ever exist so that you can go back in time and kill her?”

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

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

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

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

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Posted in: Appellate Jurisdiction, Appellate Procedure, California Procedure

July 1, 2008

Everyone Got It Wrong on the Deadline to Appeal

It is a critical question, and one that can occasionally confound: what is the deadline to appeal? 

In Hearns v. San Bernardino Police Department, case no 05-56214 (9th Cir. July 1, 2008), neither the parties nor the trial court got it right. Believing his deadline to appeal an order dismissing his compaint had already passed, Plaintiff filed a Rule 60(b)(6) motion for relief from the order.  The district court denied the motion, but granted a 10-day extension of time to appeal.  After plaintiff appealed, defendants cross-appealed the order granting the extension.

Clearly, all of the parties and the district court thought that the extension was necessary.

It wasn’t! Plaintiff’s appeal was timely even without the extension, and the Ninth therefore dismisses the cross-appeal as moot.

Determining the deadline to appeal is the very first thing I do when talking to a client – even before I determine whether the order is appealable — because the consequences of missing it are so severe.  This is especially important in California state court, where the deadline is jurisdictional.  This is why readers who click on the “Need a Lawyer on Appeal?” link at the top right of this blog are directed to a page with big, bold, capital, red letters near the top telling them to “act fast!”

UPDATE (7/1/08): As if to prove my point, the Third District Court of Appeal dismissed an appeal yesterday because the notice of appeal was untimely.  See California Appellate Law for details.

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

June 30, 2008

California Attorney Fee Recovery Preempted by ADA – and a Note on Missed Issues

It’s quite common for plaintiffs to sue under similar state and federal provisions.  The disabled plaintiffs who sued under both the federal Americans with Disabilities Act and the California Disabled Persons Act in Hubbard v. Sobreck LLC, case no. 06-56870 (9th Cir. June 27, 2008) did themselves a favor by doing so, as the court finds that the prevailing defendant’s right to attorney fees under the CDPA is preempted by the more stringent fee provision in the ADA.

The ADA fee provision makes fees discretionary, but that has led to a practice of awarding fees to defendants only where the plaintiff’s case is frivolous.  The CDPA, on the other hand, makes fees recoverable by the “prevailing party.”  Since liability is coextensive – a violation of the ADA is a violation of the CDPA  -  the   federal provision wins out.

From an appellate angle, the interesting thing about the case is that the court addressed the preemption issue even though it was not raised in the district court.  Because it is an issue of law, the Ninth Circuit had discretion to consider the issue for the first time on appeal.

More interesting yet, this wasn’t the first time a district court missed the issue.  The defendants cited two district court opinions that awarded fees to prevailing defendants sued under both the ADA and the CDPA, but the Ninth cites a major flaw in both of them: “Neither of these cases, however, considered the issue of preemption.”  The Ninth finds a third district court decision consistent with its own, but even that decision failed to address preemption.

I suppose it’s easy to say that at least one of the lawyers or judges in these three cases should have seen and dealt with the preemption issue.  But in the the throes of litigation, the parties and the court sometimes miss an issue that later seems obvious in hindsight.  That can be dangerous, as the appellate court won’t always be able or inclined to address the missed issue.

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Posted in: Appellate Procedure, Attorney Fees, Federal Procedure, Preemption, Waiver of Issues

June 25, 2008

Appeal That Fee Award

I don’t usually review unpublished decisions for material for this blog..  But unpublished decisions, even if they don’t create new law, can have some interesting points.  (Just ask Bisnar | Chase.)

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

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Posted in: Appellate Jurisdiction, Appellate Procedure, Attorney Fees, California Procedure

June 18, 2008

Order Removing Trustee in Ongoing Bankruptcy Proceeding is Appealable

As my first substantive post on this blog pointed out, determining whether a bankruptcy order is appealable can be tricky.  28 U.S.C. § 158(d) gives the Courts of Appeals jurisdiction over appeals from “final decisions, judgments, orders, and decrees entered” either by the district courts or the Bankruptcy Appellate Panel.

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

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

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

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Posted in: Appellate Jurisdiction, Appellate Procedure, Bankruptcy, Federal Procedure

June 16, 2008

Court has No Duty During Recommitment Proceedings to Consider Suitability for Outpatient Treatment

In People v. Rish, case no. B198727 (2d Dist. June 16, 2008), Rish appealed from from an order recommitting him to the California Department of Mental Health for treatment as a mentally disordered offender pursuant to Penal Code section 2972.  He claimed that the trial court erred by failing to consider whether he was suitable for outpatient treatment, even though he did not raise this alternative in the trial court.

The Court of Appeal determines that Rish waived the issue by failing to raise it.  As a matter of statutory construction, Section 2972, subdivision (d) does not impose a duty on the court to evaluate suitability for outpatient treatment sua sponte.

The court reached the issue even though it had been mooted by the trial court’s entry of a subsequent order extending Rish’s commitment for an additional one-year term and setting a hearing to address his suitability for outpatient treatment.  It found the issue “capable of repetition, yet evading review” because commitment petitions must be filed on an annual basis, making it likely the trial court would decide a new petition prior to appellate review of the prior sustained petition. 

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Posted in: Appellate Procedure, Criminal Procedure, Standing to Appeal, Waiver of Issues

June 9, 2008

What Happens When a Criminal Defendant Dies While His Case is Pending Before the Supreme Court?

The tombstone of William Rogers, died March 11, 1873. 

Image via Wikipedia

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

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

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Posted in: Appellate Jurisdiction, Appellate Procedure

June 5, 2008

Waiver of Appeal Rights in Plea Agreements

Plea agreements often waive the right to appeal, but they aren’t always what they seem, especially when it comes to how they define the scope of the waiver. For a lesson in how to determine whether a defendant has waived the right to bring a particular appeal, check out United States v. Cope, case no. 06-50441 (9th Cir. June 4, 2008).

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

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

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

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

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

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

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Posted in: Appellate Jurisdiction, Appellate Procedure, Criminal Procedure, Federal Procedure, Plea Bargains, Sentencing, Waiver of Issues

May 20, 2008

Tips from Appellate Court Research Attorneys

Donna Bader at Appeal to Reason shares some briefing pointers offered by a couple of attorneys from her local appellate court.  I was glad to see a practice of mine validated: “Wondering whether to include citations to the record in the argument, rather than just the Statement of Facts? Yes, please do.”  There’s plenty more.

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Posted in: Briefing, Legal Writing

May 13, 2008

California Supreme Court Rejects De Novo Review of Recusal Determinations

In two cases with a local angle – both originating in neighboring Santa Barbara County and thus reaching the Supreme Court through our local Court of Appeal (Second District, Division Six) – the Supreme Court reaffirms that recusal motion determinations are reviewed only for abuse of discretion.  It rejects the justifications offered by the Court of appeal for heightened review in cases of “first impression,” capital cases, or the reviewing court’s “independent interest” in “policing conflicts of interest and addressing potential errors at the earliest opportunity”

In Haraguchi v. Superior Court (People), case no. S148207 (May 12, 2008), the Santa Barbara County deputy district attorney assigned to prosecute the accused rapist of an intoxicated victim published a novel (Intoxicating Agent) just a few months prior to the start of the trial, the heroine of which was – surprise! – a Santa Barbara County deputy district attorney prosecuting an accused rapist of an intoxicated victim.   In Hollywood v. Superior Court (People), case no. S147954 (May 12, 2008), the Santa Barbara deputy district attorney, while defendant Jesse James Hollywood (pictured) was still a fugitive, cooperated with some filmmakers making the movie Alpha Dog, about the kidnapping and murder being prosecuted in the case, by providing documents and serving as a consultant on the film.  He did so (according to him) “in the hope that the publicity would result in Hollywood’s apprehension.”

In each case, the defendant moved pursuant to Penal Code section 1424 to recuse not just the assigned deputy DA, but the entire Santa Barbara County District Attorney’s office.  In each case, the trial court denied the motion on the ground that no conflict warranting recusal was present. In each case, the Court of Appeal reversed, and in doing so invoked “independent review” of the ruling instead of the usual review for abuse of discretion.  And finally, in each case, the Supreme Court reverses the Court of Appeal and reaffirms that recusal motion determinations are reviewed only for abuse of discretion.

In Haraguchi, the Court of Appeal justified departing from the normal standard of review on the ground that the “novel circumstances” of the case made it one of first impression and because the court had an independent interest in policing conflicts of interest and correcting errors at the earliest possible stage of the proceedings,  In Hollywood, the court offered the additional justification that the death penalty potential of the case justified heightened review.  The Supreme Court makes quick work of all three proffered rationale.

It rejects the “first impression” justification because it “offers no clear boundaries”:

With respect to this case being a matter of first impression, we note that virtually every case is, to a greater or lesser degree, a matter of first impression.  The difference between each new set of facts and those that previously have been ruled upon may be small and immaterial or large and momentous.  Where on the continuum a new set of facts lies is to some extent in the eye of the beholder; a court of a mind to reverse may always point to those elements of a case that it views as distinguishing and on that basis assert the issue is a matter of first impression.

It rejects the “independent interest” rationale because the interest is not furthered by independent review:

The Court of Appeal’s concerns do not, however, support a change in the standard of review.  The assertion that pretrial review should be de novo rests on the unspoken assumption that independent review will reduce the rate of error — that appellate courts given a free hand to weigh the evidence and disregard trial court findings will reverse erroneous rulings and eliminate error more often than they reverse correct rulings and thereby introduce error.  That assumption is unfounded.  We review rulings on motions to recuse only for abuse of discretion precisely because trial courts are in a better position than appellate courts to assess witness credibility, make findings of fact, and evaluate the consequences of a potential conflict in light of the entirety of a case, a case they inevitably will be more familiar with than the appellate courts that may subsequently encounter the case in the context of a few briefs, a few minutes of oral argument, and a cold and often limited record.

In Hollywood, it rejects the notion that the potential for the death penalty justifies departure from the “abuse of discretion” standard of review, because that rationale likewise rests on an unfounded proposition that de novo review will reduce the frequency of error:

The punishment at issue in capital cases makes it all the more important to ensure fairness and arrive at accurate outcomes.  But nothing in the Court of Appeal’s proposed de novo standard of review promotes those twin goals.  For recusal motions in noncapital cases, we give trial courts primacy in fact finding and in assessing whether and how great a conflict exists not because the stakes are less and errors more conscionable, but because our trial courts are genuinely in the best position “to assess witness credibility, make findings of fact, and evaluate the consequences of a potential conflict in light of the entirety of a case, a case they inevitably will be more familiar with than the appellate courts that may subsequently encounter the case in the context of a few briefs, a few minutes of oral argument, and a cold and often limited record.” (Haraguchi v. Superior Court, supra, __ Cal.4th at p. ___ [at p. 7].)  Nothing about these circumstances suggests to us that de novo review of recusal motions in capital cases would increase either the accuracy or the fairness of these proceedings.  The same point answers the Court of Appeal’s concern about reducing the likelihood of belated reversal later on in the lengthy capital appeal process; we have no basis on which to conclude independent review would reduce the risk of error.  We therefore conclude that in capital cases, as in all others, the trial courts’ rulings should be reviewed only for an abuse of discretion.

Applying the abuse of discretion standard of review, the Supreme Court finds that neither trial court erred in finding the absence of a conflict requiring recusal.

UPDATE (5/13/08): I’m guessing I’m the only guy geeky enough to focus on the standard of review employed in these high-profile cases.  For less geeky coverage, see these reports from the AP, WSJ.com Law Blog, New York Times, and Los Angeles Times,

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Posted in: Appellate Procedure, Ethics, Standard of Review

May 7, 2008

Red Light for Jurisdiction

Most lawyers are familiar with the general rule that a trial court loses jurisdiction to act in a case upon the filing of a notice of appeal. There are actually a surprising number of exceptions to that rule . . . but the amended judgment in People v. Bhakta, case no. B190437 (2d Dist. May 6, 2008) is not one of them.

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

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

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

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

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

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

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

April 23, 2008

Ninth Circuit Amends Garcia on Appellate Jurisdiction

According to Ninth Circuit Blog, the Ninth Circuit “came to its jurisdictional senses” with its amended opinion in U.S. v. Garcia, case no. 05-30356 (9th Cir. Nov. 19, 2007, amended Apr. 17, 2008). While I might have said that a little more gently, I agree with the sentiment.

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

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

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

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

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

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Posted in: Appellate Jurisdiction, Appellate Procedure, Federal Procedure, Sentencing

April 23, 2008

An Easy Cure for Citation Anxiety

Legal Writing Prof Blog links to a paper called Reducing Citation Anxiety, which is presumably intended to put one’s mind at ease regarding citation format in their legal writing. I won’t have time to look at it, but I already have a way of overcoming that anxiety: I keep a copy of The California Style Manual close by as I draft.

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Posted in: Briefing, Legal Writing

April 22, 2008

New Evidence on Appeal?

Odd as it sounds, it is possible in exceptionally rare circumstances. And I do mean exceptionally rare, which is why you almost never see it addressed in the cases.

In yesterday’s In re Valerie W., case no. D051056 (4th Dist., Apr. 4, 2008, ordered published Apr. 21, 2008), in which appellants sought reversal of judgments terminating their parental rights, the minors’ counsel asked the court of appeal to take post-judgment evidence, in the form of her declaration, pursuant to Code of Civil Procedure section 909. Section 909 is a little dense in form (it would benefit from being set forth in subdivisions), but worth reading in full (emphasis added):

In all cases where trial by jury is not a matter of right or where trial by jury has been waived, the reviewing court may make factual determinations contrary to or in addition to those made by the trial court. The factual determinations may be based on the evidence adduced before the trial court either with or without the taking of evidence by the reviewing court. The reviewing court may for the purpose of making the factual determinations or for any other purpose in the interests of justice, take additional evidence of or concerning facts occurring at any time prior to the decision of the appeal, and may give or direct the entry of any judgment or order and may make any further or other order as the case may require. This section shall be liberally construed to the end among others that, where feasible, causes may be finally disposed of by a single appeal and without further proceedings in the trial court except where in the interests of justice a new trial is required on some or all of the issues.

Counsel must be careful not to be drawn in by the “liberally construed” language. By the terms of the section, such liberal construction is to be afforded “except where in the interests of justice a new trial is required on some or all of the issues.” The rule is even stricter than this wording suggests, for the exception proves to be the rule, as the Valerie W. opinion makes clear:

The court in Zeth S. set forth the general rule that:

” ‘[A]n appeal reviews the correctness of a judgment as of the time of its rendition,
upon a record of matters which were before the trial court for its consideration.’
[Citation.] This rule reflects an ‘essential distinction between the trial and the
appellate court . . . that it is the province of the trial court to decide questions of
fact and of the appellate court to decide questions of law. . . .’ [Citation.] The rule
promotes the orderly settling of factual questions and disputes in the trial court,
provides a meaningful record for review, and serves to avoid prolonged delays on
appeal. ‘Although appellate courts are authorized to make findings of fact on
appeal by Code of Civil Procedure section 909 and rule 23 of the California Rules
of Court, the authority should be exercised sparingly. [Citation.] Absent
exceptional circumstances, no such findings should be made. [Citation.]‘
[Citations.]” (Zeth S., supra, 31 Cal.4th at p. 405, italics added.

Bottom line: appellate counsel cannot rely on the mandated liberal construction of section 909 without first demonstrating that the case is an exceptional one where the interests of justice do not require the trial court to hear and decied the factual issues.  That will usually be difficult.

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Posted in: Appellate Procedure, Record on Appeal

April 21, 2008

The Limits of Wende

Anyone who does criminal appellate work by appointment for indigent defendants is familiar with People v. Wende (1979) 25 Cal.3d 436. Wende requires the court of appeal to conduct an independent review of the record for error when appointed counsel files a brief representing that he or she has reviewed the record and found no arguable issues. At least, this review is required on the defendant’s first appeal as of right.

People v. Dobson, case no. F053531 (5th Dist. Apr. 16, 2008) teaches the limits of Wende. Dobson was found not guilty by reason of insanity and committed to a state mental hospital. Six years later, he was released to outpatient status briefly before the court granted a petition to revoke his outpatient status. Dobson then petitioned for release on the ground of regained sanity and lost.

Dobson appealed, and his appointed counsel on appeal filed a Wende brief asking the court of appeal to independently review the record. The issue decided by the court here is whether they are required to conduct such an independent review under the circumstances.

The court of appeal concludes an independent review of the record is not mandated by Wende and dismisses the appeal. A petition for release is not a criminal proceeding, and the due process protections nonetheless present make an erroneous decision sufficiently unlikely that an independent review isn’t warranted.

There’s more to the analysis, of course, and the case serves as a pretty good primer on the test for evaluating when independent review is necessary.

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Posted in: Appellate Procedure, Briefing, California Procedure, Standard of Review, Waiver of Issues

April 16, 2008

Preserve Your Sentencing Objections

In United States v. Grissom, case no. 06-10688 (9th Cir. Apr. 15, 2008), the Ninth Circuit reviews what it calls “novel circumstances” and looks beyond the form of a sentencing objection to determine whether the government had preserved the issue for appeal. Whether you view the analysis as a more lenient test or simply the application of the old test in new circumstances, it seems likely to lead to more sentencing appeals.

Grissom pled guilty to one drug distribution count involving 49 grams of cocaine base in exchange for dismissal of the remaining two counts, which involved a total of 56 grams of cocaine base. The government contended that the trial court erred by not including the drug quantities from the dismissed counts in the calculation of the base offense level.

The district judge announced his reasoning for imposing an 87-month sentence –  including her decision not to include the drug quantities from the dismissed counts — and asked if there was any legal cause why sentence should not be imposed. Then:

The government responded, “No, your honor. I would simply note the government’s objection on the record.” At that point, the court stated, “I know. You know what you can do with that. Take it to appellate court, if that’s what you want to do. I don’t think it’s worth it myself, but that’s something you have to decide.”

Ordinarily, to preserve a sentencing objection for appeal, it “must have a specific substantive basis” in order to apprise the district court of the specific nature of the objection for its due consideration. Here’s the dilemma faced by the Ninth:

But what happens when the district court indicates that it has understood, and rejected, the substance of a party’s objection? This case presents the issue of forfeiture in novel circumstances. Neither party disputes that the government objected to the sentence imposed on Grissom. Before the government articulated a basis for its objection, however, the district court stated “I know[,]” and the government pursued the matter no further. The government now contends that its own general objection, coupled with the district court’s terse statement, reflects that the district court was fully aware of the government’s legal position regarding relevant conduct.

It turns out to be not such a dilemma after all, as the court looks past the facially deficient objection to find that the government had made its position plain throughout the sentencing process:

Despite the seeming facial inadequacy of the objection, we agree with the government that where the district court indicates that it understands the basis for the objection and that further argument is not desired, and the record reflects this understanding, a general objection may suffice to preserve an issue for appeal. As the government argues, the purpose of a specific objection is to allow for meaningful review by the district court and, if necessary, the appellate panel. Santiago, 466 F.3d at 803. Thus, the court’s reassurance that it “know[s]” the substance of a party’s complaint helps to allay concerns about the ability of the district court to address it. Cf. United States v. Pineiro, 470 F.3d 200, 204-05 (5th Cir. 2006) (concluding that the government preserved its objection to recalculating the defendant’s sentence by making statements throughout the sentencing hearing arguing that the prior calculations were still appropriate); United States v. Curry, 461 F.3d 452, 459 (4th Cir. 2006) (excusing the government’s failure to object at the end of the sentencing colloquy where the government argued vigorously throughout the hearing, such that it “made unmistakably clear its position”).

Reviewing the record, we are satisfied that the district court was indeed fully aware of the government’s position regarding the district court’s calculation of relevant conduct. First, the government consistently advanced its view that quantities of crack cocaine from the dismissed counts of the indictment should count for sentencing purposes. The plea agreement, PSR, and both parties’ sentencing memoranda all calculated Grissom’s offense level based on the total amount, 105 grams, rather than the 49 grams charged in the count of conviction. Neither party challenged this calculation at the sentencing hearing. Second, the district court’s comments indicate an awareness that its decision not to consider the amount from the dismissed counts produced the government’s objection. After commenting that determining the calculation based on 105 grams would not “amount to dismissing the other two [counts] because [the government would] still . . . count them out anyway[,]” the district court changed the base offense level to “reflect[ ] the 49 grams.” In short, the district court knew it was deviating from a calculation based on the total amount. Responding to the government’s objection, the district court challenged the government to “take it to appellate court, if that’s what you want to do.” The district court’s challenge to the government to appeal strongly suggests the district court recognized and disagreed with the claimed error. Therefore, we hold that the government’s objection was sufficient under the circumstances to preserve its objection to the district court’s calculation of Grissom’s sentence.

Bottom line: what matters is not so much the actual presentation of the objection, but whether the record discloses that the district court was well-enough advised of the nature of the objection that it could give it due consideration.

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Posted in: Appellate Procedure, Federal Procedure, Waiver of Issues

April 15, 2008

Standards of Review, Please!

The appellate practice equivalent of the old real estate maxim “location, location, location” is probably “standard of review, standard of review, standard of review.” Most appellate opinions state very clearly the standard of review that they are applying to a given issue on appeal.

In Warner Bros. Int’l v. Golden Channel, case no. 05-55374 (Apr. 15, 2008), the Ninth Circuit panel takes a shortcut. The appeal is from the judgment after a bench trial and the only reference the opinion makes to any standard of review is this: “In light of the findings of fact and words of the contract the parties signed, the conclusions of law (which are not reviewed under the highly deferential “clearly erroneous” standard [fn.]) are problematic.” That’s it. The court says what standard it is not applying, but doesn’t specify what standard it is applying. You have to go to the case cited in the footnote to be certain that the court is applying de novo review to the conclusions of law reached by the district court.

Maybe I’m making too big a deal of this. Everyone knows conclusions of law are subject to de novo review, right? Well, we know the standard of review in lots of other circumstances, too. But that doesn’t usually stop the court from reminding us.

Of course, the standard of review isn’t always so easy. It can be downright tricky and even disputed by the parties.

A great starting point for anyone representing a party on appeal in the Ninth Circuit is the court’s own guide to standards of review, which it makes available on its website (PDF download). Follow the court’s caution, though, and use it only as a starting point for your own research.

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Posted in: Appellate Procedure, Standard of Review

April 4, 2008

En Bancs on the Upswing under Chief Judge Kozinski

Alex KozinskiImage from Wikipedia

In yesterday’s Daily Journal, Staff Reporter John Roemer has a front-page article about an apparent surge in en banc rehearings granted by the Ninth Circuit since Alex Kozinski became Chief Judge. (Full disclosure: yours truly is quoted in the article.)

Are the two phenomena related? Not according to Judge Kozinski, whom the article quotes:

“I’ve always been more en banc friendly than many of my colleagues,” he wrote in the e-mail. “But I frankly doubt that my being chief judge will have any effect on the process. I’ve had my share of successes as well as failures when calling for en banc review.

“There are not – and should not be – extra points for being chief judge. It is not a bully pulpit, nor is it a platform for proliferation of my substantive views .”

Roemer provides interesting background on Judge Kozinski’s history of fervent advocacy for en banc review, including a colorful description of his frequent dissents from orders denying rehearing en banc as “prose hand grenades lobbed to blast the court away from the status quo.” I think Judge Kozinski would approve.

It seems possible, at least, that the judges may be more willing to take on en banc rehearings since last July, when it reverted to 11-member en banc panels after a brief experiment with 15-member panels. That would make a greater number of en bancs more manageable. But I don’t have any information on whether en bancs went down during the roughly 18 months they required 15-member panels, so I have no idea if the size of the panel is affecting the judges’ thinking.

For anyone considering petitioning for rehearing en banc, the article contains some sobering numbers: 1,097 petitions for rehearing en banc were filed in 2007, and through November, only 18 had been granted. That’s less than 2%.

By the way, Judge Kozinski is the subject of the cover article in April’s California Lawyer.

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Posted in: Federal Procedure, Ninth Circuit, Rehearing

April 2, 2008

Appealing from an Order of Dismissal

An order dismissing a complaint is not a “final decision,” so such an order is generally not appealable under 28 USC § 1291. A dismissal order may be appealable, however, when it appears that the district court intended the order to dispose of the action.

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

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Posted in: Appellate Jurisdiction, Appellate Procedure, Federal Procedure

April 1, 2008

Appellate Surprises

Some points about appellate practice — even well-settled points — can come as surprises to those not well versed in it. Doe v. United Airlines, case no. B192865 (2d Dist. Mar. 20, 2008) consolidates several of them in a single case. I’m only going to spend a line or two on each one, without much elaboration. The point of the post is to disclose just a few traps trial attorneys can fall into, not to give detailed exposition on each point.

My original post about the case concerned what some might consider a procedural oddity: a new trial motion where no trial ever occurred. A new trial motion is validly made after a grant of summary judgment.

Here are the remaining points I think worth bringing out of the case:

The Protective Cross Appeal. Congratulations, you’ve won your new trial motion! Your adversary appeals the grant of a new trial. And if you think you’re going to be disappointed if they prevail on appeal, you’re going to be absolutely horrified if you forgot to file a protective cross-appeal from the underlying judgment.

Forfeiture of Evidentiary Objections. California decisions generally hold that objections to evidence offered in summary judgment are not preserved for appeal unless the objecting party secures a ruling from the trial court. But with the recent development of a split of authority, the Supreme Court has agreed to review the issue.

Affirmance of New Trial Orders on Alternative Grounds. Read that new trial statute (Code Civ. Proc., § 657) closely. Section 657 provides, in part, that (emphasis added) “[o]n appeal from an order granting a new trial the order shall be affirmed if it should have been granted upon any ground stated in the motion, whether or not specified in the order or specification of reasons,” followed by exceptions to this rule.

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Posted in: Appellate Procedure, New Trials, Summary Judgment, Waiver of Issues

March 31, 2008

Almost En Banc

There’s a very unusual course of events leading up to the innocuous order dismissing the appeal in Foulon v. Klayman & Toskes, case no. 05-35383 (9th Cir. Mar. 24, 2008). For details on this strange tale of the unrequested en banc hearing that almost was (yes, you read that right), check out California Appellate Report, where Professor Martin calls what happened “sufficiently rare that it took me quite a while to figure out even what happened.” Then see why Appellate Law & Practice refers to at least one step in the procedure as “judicial activism.”

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Posted in: Appellate Procedure, Federal Procedure, Rehearing

March 31, 2008

The Tip of the Stare Decisis Iceberg

That’s how Ben Shatz describes his article on stare decisis at the Los Angeles County Bar Association website. It is a fast read and a great introduction to a doctrine that has far more wrinkles in it than most people think. Every lawyer who gets anywhere near a courtroom should read it.

One of the points Ben raises is that there is no lateral stare decisis in the California Court of Appeal. One district is free to depart from a decision from another district, or even from prior decisions from other panels in the same district.

As I pointed out in a recent post, you can take on adverse Court of Appeal precedent no matter how squarely it seems to hold against you. A Court of Appeal is free to depart from a case that is wrongly decided, and might even be hoping for you to give them a good reason to do so.

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Posted in: Stare Decisis

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March 27, 2008

The Unexplained Concurrence

Here’s an interesting Howard Bashman’s column that explores the phenomenon of third justices who “concur in the result” without further comment on the majority opinion. 

NOTE: Somehow this post got marked “private,” so I’m not sure it ever showed up on the blog before.  But it’s possible it was posted for a while befopre it got marked “private,” in case you’re looking for an explanation for any deja vu you’re experiencing.)

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Posted in: Decision on Appeal, Federal Courts, Legal Writing

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