The standard of review on appeal regarding enforceability of arbitration clauses

questions-1As I’ve mentioned before, the standard of review is not always clear. One sometimes has to “drill down” past the obvious, and the “abuse of discretion” standard is full of nuance. The parties’ briefs may even fight over which is the correct standard of review to apply, or the cases may be split on the issue. Sometimes, where the standard is in dispute, it doesn’t matter, because the outcome is the same under either standard.

There is no question as to what standard of review applies in yesterday’s decision in Carlson v. Home Team Pest Defense, Inc., case no. A142219 (1st Dist., August 17, 2015), but the case nonetheless has a lesson in careful application of the standard of review. The appeal was from an order denying a motion to compel arbitration. The court begins its discussion of the standard of review by announcing “There is no uniform standard of review for evaluating an order denying a motion to compel arbitration.”

Well, if there is no uniform standard, how do you decide what standard applies to your case? It’s hard to answer that question any more succinctly than the court, so I’ll let the court do it:

If the court’s order is based on a decision of fact, then we adopt a substantial evidence standard. [Citations.] Alternatively, if the court’s denial rests solely on a decision of law, then a de novo standard of review is employed.

In this case the trial court made factual findings based on at least some material disputed evidence. From those findings, the trial court concluded that Home’s Agreement was both procedurally and substantively unconscionable and should not be enforced. Accordingly, [t]o the extent there are material facts in dispute, we accept the trial court’s resolution of disputed facts when supported by substantial evidence; we presume the court found every fact and drew every permissible inference necessary to support its judgment.

(Citations and internal quotation marks omitted.)

Some easy examples are cited in one of the cases cited in Carlson. In Robertson v. Health Net of California, Inc. (2005) 132 Cal.App.4th 1419, the order denying the motion to compel arbitration was based on the trial court’s conclusion that the arbitration agreement violated a statute. Since this presented a purely legal question of statutory interpretation, review was de novo. Robertson cited Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416 as an example where review for substantial evidence was appropriate, because the order in that case was based on the trial court’s factual finding that the parties never reached agreement on arbitration.

Craig suggests that this analysis is apparently required whenever the validity of an arbitration clause is at issue on appeal, not just on appeals from orders denying a motion to compel arbitration. Craig was an appeal from a final judgment confirming an arbitration award after a motion to compel arbitration had been granted. Yet, Robertson cited to it as an example of how to apply the standard of review.

How hanging out with the wrong crowd might doom your appeal of your criminal conviction

Don’t be too alarmed at the title of this post. I’m not saying that the Court of Appeal will take the character of your known friends into account when deciding your appeal. I’m referring to convictions arising out allegations that members of a small group participated in a crime together. If there is no direct evidence that a particular defendant did any particular act, might being one of the group on the scene be enough to convict?

That all depends on what the defendant did with the group and what the group did. In In re Kevin F. (People v. Kevin F.), case no. A140445 (1st Dist., August 10, 2015), the court found the evidence supported a robbery conviction despite the absence of any direct evidence that the defendant himself assaulted the victim or took any of his property.

The defendant (referred to as “Minor” in the opinion) was with a group of three or four men that struck up a conversation with the victim on a commuter train and then, while walking with the victim afterwards, jumped him and stole several items after they entered a dark alley. The victim could identify which in the group had grabbed and held him while the others punched, but he could not identify who landed which punches and could not even say with certainty that all of them participated in the assault. He could say only that he believed all of them participated because he was “being punched in different directions.” The victim testified that he heard all of the men speaking but he could not tell who said what. The victim pursued the group as they ran away. When he caught up to them, the man who had held the victim took a threatening posture and told the victim, “I have  a knife,” after which all of the group ran off.  After the assault, the police drove the victim around the neighborhood to see if he recognized anyone. He identified Minor as part of the group that robbed him, but the police found no weapons or any of the victim’s property on Minor.

Now, you might be saying to yourself, how could Minor’s conviction be upheld if nobody testified that he actually took part in the assault or that he took any of the victim’s property? The answer starts with the standard of review as explained by criminal lawyer London Ontario based Phillip Michaels:

“Our review of [Minor’s] substantial evidence claim is governed by the same standard applicable to adult criminal cases. [Citation.] ‘In reviewing the sufficiency of the evidence, we must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citation.]’ [Citation.] ‘ “[O]ur role on appeal is a limited one.” [Citation.] Under the substantial evidence rule, we must presume in support of the judgment the existence of every fact that the trier of fact could reasonably have deduced from the evidence. [Citation.] Thus, if the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment. [Citation.]’ [Citation.]” (In re V.V. (2011) 51 Cal.4th 1020, 1026.) Before the judgment of the trial court can be set aside for insufficiency of the evidence, “it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) An appellate court may not reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

The “substantial evidence” threshold doesn’t seem real hard to meet, does it? As you might expect, appeals challenging the sufficiency of the evidence to support the conviction are notoriously hard to win.

Here, the court finds there is substantial evidence supporting a conviction, because there is evidence that: Minor was in the group that the victim met on the train; Minor introduced himself to the victim; Minor was still with the group when it got off the train, and waited outside a liquor store while the victim purchased cigarettes; Minor was with the group when it entered the alley with the victim; the victim was punched from several directions and thus “believed” everyone in the group punched him; no one in the group told the others to stop; Minor fled with the group after the robbery. Thus, “[The victim’s] testimony that Minor was with the group before, during and after the attack, along with [his] testimony about the attack itself (i.e., the young men punched him from different directions, and no one left or tried to stop the others), allows a reasonable inference that Minor participated in the attack.”

Alternatively, the court in Surrey, Ontario finds that the evidence is sufficient to establish that Minor aided and abetted  the robbery. Even if the finder of fact did not believe that Minor actually struck the victim or took any of his property, the court finds that it is reasonable to believe that Minor acted as a lookout to facilitate the robbery because he was with the group the entire time and did not state any objection to the assault and robbery.

Now, it might be that Minor did not assault the victim or take any of his property. He might have wanted no part of the assault and robbery, perhaps even been too scared to move or say anything during the crime, and so frightened of being associated with it (or of having to testify against his friends) that he ran off with the group rather than wait around for the police. But such alternate views do not come into play in substantial evidence review. The question is not whether a factfinder could go wither way based on the evidence. The question is whether substantial evidence supports the conviction, even if a reasonable factfinder could go either way.

In short, when any crime is committed in a group — at least, when committed in a small group of 3 to 6 people — it probably won’t matter that there is no direct evidence that a particular defendant did any specific act. So long as there is evidence that the defendant was part of the group and remained with the group before, during and after the crime, and did not object during the crime, the court is likely to find substantial evidence to support the conviction.

The appellate angle in Marriage of Davis

Family law attorneys are buzzing this week about Monday’s unanimous Supreme Court decision in Marriage of Davis, case no. S215050 (July 20, 2015). The Metropolitan News-Enterprise summed up the holding this way: “A married person cannot be considered separated, and thus permitted to keep his or her earnings as separate property, while continuing to live with his or her spouse[.]” The court itself referred to its ruling as a “bright-line” rule.

Not so fast, folks. My friend Claudia Ribet has a column in today’s Daily Journal (link requires subscription) discussing the subtleties in the decision and concurring opinion, concluding that it may not even reduce litigation over the “separate and apart” issue very much.

I’ll leave that debate to the family law attorneys for now. If you are looking for a family law lawyer visit

I, of course, am interested in what this decision teaches us about approaching appeals. The obvious lesson is this: an appellant needs to carefully consider the standard of review and, if at all possible, frame an issue on appeal subject to de novo review, in which the appellate court reviews the ruling without any deference to the trial court’s ruling or rationale, as if the case was being decided anew.

As the Supreme Court notes at the outset of its analysis, the date of separation “is normally a factual issue to be reviewed for substantial evidence.” However, the appellant raises an issue of statutory interpretation of Family Code section 771, subdivision (a), thus invoking the more favorable de novo standard of review, and prevails. Contact a divorce attorney in Scottsdale AZ  if you want to get compassionate, attentive, and personalized client service throughout each case.

In this case, it probably was not too hard for appellant to realize how to latch onto an issue subject to de novo review, since the trial court’s decision went against a court of appeal opinion establishing separate residences a “threshold requirement” of living “separate and apart” for purposes of the statute. Voilà! De novo review of statutory interpretation.

It’s not always that easy. For more difficult cases, see this post and this one.

Overcoming the abuse of discretion standard on appeal of an attorney fee award: what did the trial court actually do?

Respondents use the “abuse of discretion” standard for all it’s worth when defending against appeals, and they should. Often, it’s one heck of a shield. But there are limits to relying on this standard of review, and the Court of Appeal will reverse in appropriate circumstances.

One such example is last week’s decision in McKenzie v. Ford Motor Co., case no. G049722 (4th Dist., July 10, 2015). Plaintiff rejected one settlement offer in this “lemon law” case, but settled a few months later. The settlement was entered as a judgment. It required Ford to buy back the “lemon” automobile and allowed the plaintiff the option of accepting payment of $15,000 for attorney fees or instead roll the dice with a fee motion. Plaintiff moved for nearly $48,000 in attorney fees, and appealed when the trial court awarded only $28,350.

The trial court explained its award by noting that it deemed all of the fees incurred following the plaintiff’s rejection of an initial settlement offer to be unreasonable, because the only difference in the initial offer and the settlement entered into was the provision allowing him to file an attorney fee motion. To the trial court, this indicated that the 42 hours billed to the case following the plaintiff’s rejection of the earlier settlement offer “amounted to ‘plaintiffs’ counsel exaggerating the amount of their fees to increase their prized fees.'” (Gee, attorneys concerned about getting paid. Who’d of thunk it?)

The Court of Appeal reverses, finding fault with the trial court’s reason for limiting the fee award. Its analysis is helpful to anyone facing the daunting “abuse of discretion” standard of review.

First, the Court of Appeal notes that the trial court erred as a matter of law in characterizing the differences between the initial settlement offer and the eventual settlement, because (1) the trial court was wrong about the first offer not including an option for plaintiff to accept $15,000 or make a fee motion; the settlement and prior offer were actually identical in this regard; and (2) there were many other material differences not noted by the trial court. “The trial court’s erroneous comparison of Ford’s initial compromise offer with the offer McKenzie later accepted fatally undermines its conclusion that the entire amount of hours billed by McKenzie’s counsel in the wake of that initial offer was unjustified.”

Second, the Court of Appeal demonstrates the limits of its duty to indulge all reasonable inferences in favor of the ruling:

Ford counters by first emphasizing our obligation to indulge all inferences in favor of the trial court’s ruling, and pointing out the trial court is not required to explain in detail the basis of its fee decision. Ford urges us to construe the court’s reduction of McKenzie’s fee as reflecting an assessment of the usual lodestar factors considered in determining fee amounts — e.g., the complexity of the case, the expertise of McKenzie’s counsel, and the early stage at which the case was settled — and a resulting determination that $28,350.08 was simply an overall “reasonable” fee for the work performed.
However, while we could certainly do that in the absence of any specific analysis provided by the trial court, we cannot ignore the court’s reasoning when detailed in the order. In this case, the court was quite explicit in explaining the basis for reducing McKenzie’s fees — rather than imposing a general reduction on the fees requested from the outset, on the basis the rates charged by McKenzie’s counsel were too high or the overall time claimed was unreasonable given the complexity of the case, the court characterized its reduction as “based on redaction of fees for duplicated and unnecessary services and billing performed after defendant’s service of its CCP Section 998 offer.” The court awarded McKenzie 100 percent of the fees he requested for the period before Ford’s initial offer, but found the entirety of “the subsequent billing was unreasonable” and excised that specific portion of the fees from McKenzie’s award. When the court states its reasons explicitly, we cannot infer its exercise of discretion rested on a wholly different basis.

(Italics did not appear in the trial court analysis and were added by the Court of Appeal.)

In short, what the court actually did is what matters for the abuse of discretion standard. As the court points out, it may be impossible to know what the court actually did. Had the record in McKenzie not made clear the basis of the court’s exercise of discretion, plaintiff probably would have been sunk on appeal, unless there was no rational basis for the amount of the award.

Having the trial court’s analysis in the record made all the difference in this case. Keep that in mind when your next fee motion approaches.

A break for some shipmates and a lesson on drilling down on the standard of review

As a graduate of the “Boat School” (or “Canoe U”), I went on alert as soon as I spotted a case in yesterday’s advance sheets regarding whether some local county employees’ time as U.S. Naval Academy Midshipmen (don’t call them “middies”) could enhance their county retirement credits. My shipmates came out on the winning end of things, and the opinion offers a lesson on appellate procedure.

The issue in Lanquist v. Ventura County Employees’ Retirement Association (case no. B251179, 2d. Dist., March 16, 2015) is succinctly stated in the first paragraph of the opinion:

Ventura County Employees’ Retirement Association (VCERA) permits employees to purchase retirement service credit for time spent in military service. It excludes time spent as a midshipman at the United States Naval Academy (Academy).Our interpretation of a Ventura County Board of Supervisors’ resolution, adopting the County Employees Retirement Law (CERL), leads us to the opposite conclusion.”Military service” includes s as a midshipman.

What to Look for in an Attorney

Since you know the major benefits of having an experienced VA disability lawyer, it’s time to know what to look for when hiring a lawyer for your military earplug lawsuit. There are specifications they should have, including being VA accredited and assets that you don’t have.

Never hire the first lawyer you speak to if you haven’t spoken about your claim to another lawyer. You should speak to at least three lawyers to decide who will suit you the best.

The best disability lawyers will be:

  • VA Accredited: Your lawyer has to be accredited by the VA. In order to be accredited by the VA, they must fill out paperwork for the Department of Veteran Affair’s Office of General Counsel (also known as VAOGC). All the forms and documents are examined and determined if they’re fit to fight for vets. The lawyer then gets 12 months from when they’re accepted to complete a 3-hour course.
  • Experienced: Experience is always good when hiring any lawyer. You want an attorney to know the entire process in and out. They have experience working for other vets, just like you. A great lawyer will let you know what needs to be done every step of the way. Not only should they have an extensive past dealing with VA regulations, but they should be currently practicing this same law. If they haven’t practiced recently or haven’t been to the VA court in years, they might be a little rusty on everything.
  • Focused: Alongside experience, you want a VA disability lawyer whose focus has been primarily on cases like yours. A lawyer with too many focuses may only know the basics of the VA’s policies on disability. Your lawyers need to know the intricacies.
The journey for the plaintiff employees started with their applications to purchase credits for their time at the Academy, then wound through assorted administrative proceedings that denied their applications. The plaintiffs filed a petition for writ of mandate in the superior court, which denied the petition.

On the ensuing appeal, the trial court’s decision is reviewed de novo. That does not mean, of course, that the underlying administrative decision is likewise reviewed de novo. De novo review of the trial court’s decision means that the appellate court has to put itself in the shoes of the trial court and review the administrative decision under the standard of review that the trial court was required to apply. Normally, review of such a quasi-legislative administrative body’s decision is limited to whether the decision  was “arbitrary, capricious, lacking in evidentiary support, or contrary to procedures provided by law.” (Citations omitted.) But here, the plaintiffs got a break from the fact that the administrative body had construed a statute rather than exercise discretionary rule-making power. Thus, the ruling was subject to heightened review: “We tak[e] ultimate responsibility for the construction of the statute, [but] accord[] great weight and respect to the administrative construction.” (Citation and internal quotation marks omitted.) Under that level of scrutiny, the administrative body’s interpretation of the statute did not hold up, and the plaintiffs’ time as midshipmen was held to be subject to the retirement service credit purchase scheme.

That’s a welcome surprise, given that time for service at the Academy is not counted toward time in service for purposes of calculating military retirement pay for retiring officers. Presumably, the federal statutes cited by the court in its analysis apply with equal force to graduates of other service academies and thus former ZoomiesWoopsCoasties working for Ventura County are likewise eligible for this program.***

The larger lesson to be drawn is that one should not be automatically discouraged by the default standard of review. Take a careful look at the case to see if a more favorable standard of review can be invoked. And kudos to these plaintiffs, both of whom were self-represented but only one of whom is an attorney.

***Believe me, use of these nicknames is all in good fun — there is a healthy respect for each other among the academies, but the good-natured rivalries among them can make it look otherwise. Stanford-Cal, Alabama-Auburn, and other college rivalries have got nothing on Army-Navy. Go Navy! Beat Army!

Sometimes the standard of review is better than you might first think

Clients (and their lawyers) can be disheartened when they conclude that the ruling they want to challenge on appeal is subject to review for abuse of discretion — a standard of review that is indeed daunting. But keep in mind that rulings ordinarily subject to review for abuse of discretion may be subject to the much more appellant-friendly de novo (independent) standard of review, in which the court of appeal decides the issue without any deference to the trial court.

The defendant-appellant in Children’s Hospital Central California v. Blue Cross of California, case no. F065603 (5th Dist. June 9, 2010) was able to take advantage of this situation. Blue Cross had a contract with the state to provide a managed care plan for Medi-Cal recipients. Plaintiff hospital and Blue Cross had a written rate agreement that lapsed, and did not enter into a new agreement for about ten months. In the interim, the hospital kept providing services and Blue Cross paid the hospital more than $4 million based on government Medi-Cal rates, but the hospital contended that the reasonable value of the services provided was nearly $11 million, and sued to recover the difference.

Blue Cross contended that the trial court improperly limited the evidence of the reasonable value of the services by denying Blue Cross’s discovery motion to compel the production of the hospital’s written agreements with other insurers and granting the hospital’s motion in limine to preclude any evidence of the rates accepted by or paid to Hospital by other payors, the Medicare Plan G fee for service rates paid by the government, and Hospital’s service specific costs. The hospital contended that reasonable reimbursement rates were governed solely by the six factors set forth in a regulation.

Normally discovery rulings and evidentiary ruling are subject to review for abuse of discretion. Here, however, Blue Cross benefited from a de novo standard, because the basis for the trial court’s rulings — its conclusion that the evidence was irrelevant — is an “analysis of the substantive law governing the case,” making it a legal issue subject to independent review.

The abuse of discretion standard is full of nuance. Don’t let it automatically discourage you from pursuing an appeal. Instead, consider the actual error to be asserted to see if it comes within independent review.

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.

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.

“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.

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.

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!

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?

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.

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

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

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

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

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

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

Why Some Lawyers and Their Clients are Reluctant to Engage Appellate Counsel, Part 2: “It’s Just Litigation.”

(NOTE: This post is the second in a series. To read the announcement of the series and/or leave your ideas for subsequent installments, click here.)

In my first post in this series, I broke down lawyers’ reasons for not engaging appellate counsel into two broad categories: those related to ability and those related to economics. Today, we will examine a reason related to ability:

It’s just litigation”, or “Hey, I’m a litigator, and appeals are litigation, so I can do it.

Are appeals litigation?  Well, let’s see.  Adverse parties?  Check.  Legal and/or factual disputes?  Check.  Courtroom and judges?  Check.  Judgments?  Check.  Yeah, I’d say that appeals are litigation.

That said, they are a continuation of litigation, and with crossing the boundary from trial court to court of appeal, the parties and their attorneys enter a new realm.  That realm has multiple judges hearing the same case, no juries, no discovery, few motions, and an emphasis on persuasive writing that is rivaled in the trial court only on dispositive motions.

As I  noted in my first post, many lawyers are comfortable, and  quite able, on both sides of the divide.  Neither this post nor any other in the series is meant to deride the skills of trial lawyers.

But there are pitfalls that await the lawyer who assumes appellate practice is no different than trial practice.  Perhaps the biggest is the standard of review.

Pitfalls in the Standard of Review.

The trial lawyer entering the appellate landscape for the first time may have difficulty navigating through it.  That can result in wasting time (and, for the client, hourly fees) on useless activities or argument, even a failure to even recognize the burden he or she faces on appeal.

One such useless exercise in the court of appeal that happens with shocking regularity is to argue to the court as if the three justices are a jury: this witness is believable, this one is not; that evidence should be disregarded; the other side’s story makes no sense, etc.  How do I know this happens?  I’ve talked to a couple of appellate justices — not a large enough sample to be of statistical significance, admittedly — who told me this happens regularly. Not necessarily frequently, but regularly.

This approach betrays the lawyer’s lack of familiarity with the most fundamental brick in the appellate arsenal: the standard of review.  Which is why I was so stunned by the justices’ revelations, even though I have seen appellant’s briefs that didn’t even mention the standard of review.  (Occasionally, you might even see a court neglect to state it!)

Simply put, an appeal isn’t your second chance to try the case.  It’s merely an opportunity to convince the court of appeal that the trial court erred and that the error prejudiced your client.

Of course, the evidence in the trial court can come into play in the court of appeal, just in a different way (usually).  But even in cases of substantial evidence review — in which the court of appeal will reverse if there is no substantial evidence to support a finding required by the judgment — persuasion based on credibility is generally out of place.

What’s more, unfamiliarity with the standards of review on appeal might cause a lawyer to miss good arguments entirely.  An undue concentration on the evidence produced at trial may lead the trial attorney to miss important issues preserved for appeal on a less deferential standard of review, and thus presenting a greater chance of success on appeal.  Is there a legal issue you’ve missed because you are so wound up in the presentation of evidence at trial?  If so, you’ve missed an opportunity to obtain “de novo” review, under which the court gives no deference to the trial court — your best shot at success.  In fact, that legal issue may be hidden within a more deferential standard — whether the trial court abused its discretion, or whether substantial evidence supports the judgment, may in turn rely on a question of law subject to de novo review.

Simply put, the simplicity of the standard of review structure — de novo review, abuse of discretion, and substantial evidence — masks a lot of nuance not readily discernible to someone unfamiliar with appellate practice.  It’s far more than a “smell test”.  Indeed, parties regularly argue over the applicable standard, either because the nature of the issue is misleading or because the applicable standard for a given judgment has not been established (such as here, here, or here, for example).  If it were really simple all the time, would there be a book on the subject?

I haven’t discussed some other pitfalls, mostly for the sake of brevity (if you can call this post brief).  Perhaps I will give this particular reason for not engaging appellate counsel — “it’s just litigation” — a few more posts of its own.


Finally, the trial lawyer may find that he or she simply does not like the appellate process.  As I noted in my first post:

Some trial lawyers just plain don’t like doing appeals.  For some, it may be because appeals lack everything they like about litigation: frequent confrontation, lots of court appearances, sleuthing through discovery, and lots of twists and turns.  Appellate practice usually isn’t a hotbed of excitement.

If your strengths lie in frequent confrontation, then maybe apeals aren’t for you, either as a matter of preference or a matter of skill set.  (This is especially true if you don’t like spending time in the law library or writing, but I’ll address that preference in a future post.)

The Client’s Perspective.

The client consideration that parallels the lawyer’s belief that “it’s just litigation” is really an absence of consideration.  That is, many clients may see no difference at all between their trial court action and the appeal.  The client is only likely to note the differences if the lawyer points them out.  And if the lawyer doesn’t see them, the lawyer cannot point them out.  Under these circumstances, the only time many clients are likely to seek an appellate attorney is if the client is genuinely displeased with the trial lawyer’s services.

However, I think this situation is changing over time.  I suspect that clients, like all consumers, are becoming more and more knowledgeable all the time about the services they receive.  The inquiries I receive from lay readers of my blog tell me that clients are learning that there is a difference between trial work and appellate work.

Clients almost always want a specialist when one is available.  An employment discrimination plaintiff doesn’t seek a personal injury lawyer when a plaintiff’s employment lawyer is available.  Over time, I expect more and more clients will seek new representation on appeal, and won’t need their trial lawyers to put them on notice of the differences between trial and appellate work.  They will challenge their trial lawyers’ unspoken assumption that the trial lawyer is always the right person to handle the appeal.

(NOTE: To access all posts in this series to date, click here.  Finally, allow me to again solicit your participation.  If you’d like to offer a topic for a post in this series, leave your comment in this post or, preferably, in the post announcing this series.  And don’t hesitate to repeat a topic someone has already left.  That will tell me there is greater interest in that topic.)

Client parallel: unawareness of appellate specialization

An Important Discovery Ruling Overcomes a Deferential Standard of Review

For a prospective appellant (or, as in the case profiled here, the prospective writ petitioner), the “abuse of discretion” standard of review can be daunting, and may even convince the party that the pursuit of an appeal or writ is not worthwhile. Not only does it set a high bar for reversal, but it can be very difficult to define within the circumstances of a case. (I’ve written before about the somewhat hazy nature of the “abuse of discretion” standard of review.)

Against this backdrop, Alch v. Superior Court, case no. B203726 (2d Dist. Aug 14, 2008) presents a very interesting discussion of the standard as it introduces its decision reversing the trial court’s refusal to allow discovery (which is not, by the way, immediately appealable, and thus is found in this writ decision).

First, the backdrop of the case:

Television writers filed class action lawsuits against studios, networks, production companies and talent agencies, asserting an industry-wide pattern and practice of age discrimination. The writers served subpoenas on third parties, including the Writers Guild of America, seeking data on Writers Guild members from which they could prepare a statistical analysis to support their claims of age discrimination. A privacy notice was sent to 47,000 Writers Guild members, advising them of their right to object to disclosure of personal information on privacy grounds. Some 7,700 individuals filed objections. The writers moved to overrule the objections. The trial court sustained the objections in their entirety. The writers sought a writ directing the trial court to vacate its order and allow access to certain of the requested information, arguing the information was critical to proving their claims and privacy concerns were minimal. We grant the writ petition.

Before even reaching its analysis, the court of appeal explains why it is able to reverse despite the formidable obstacle usually presented by the abuse of discretion standard applicable to review of orders denying discovery:

We are well aware that a reviewing court may not substitute its opinion for that of the trial court if there is a basis, supported by the evidence, for the trial court’s ruling, and that we may set aside an order denying discovery only if there was no legal justification for the order. (Tien v. Superior Court (2006) 139 Cal.App.4th 528, 535.) We also recognize that the trial court was faced, to some extent, with a moving target: the information initially subpoenaed was more comprehensive – and considerably more sensitive on the privacy scale – than the information the writers requested in their motion to overrule the objections, and the latter, too, was more inclusive than the information ultimately sought when the writers asked for reconsideration. These differences, however, highlight the error in the trial court’s analysis. It used a broad brush to deny the writers access to all data about the objectors out of hand, and wholly failed to consider whether a more nuanced approach to the different categories of data would satisfy the balance that must be struck between privacy interests and a litigant’s need for discovery. (See Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 658 (Valley Bank) [considerations which will affect the exercise of the trial court’s discretion in evaluating privacy claims include the “‘ability of the court to make an alternative order which may grant partial disclosure’”; where possible, “‘courts should impose partial limitations rather than outright denial of discovery’”].)

In short, while the trial court purported to weigh the objectors’ privacy rights against the public interest in pursuing the litigation, it failed to follow the dictates of Valley Bank in doing so. In addition to failing to analyze the different categories of data requested, the court gave short shrift to “the public interest in pursuing [the] litigation.” Indeed, it erroneously stated that the writers, in their brief, had indicated “that they may still be able to put together a meaningful statistical study based upon information from non-objectors.” On the contrary, the writers submitted evidence that no meaningful statistical study could take place if data from the objectors were omitted from it. Under these circumstances, we can reach no other conclusion than that the trial court’s orders denying access to any and all data from the objectors were without legal justification.

(Footnotes omitted.)

I suspect, however, that few litigants will be able to take advantage of Alch in the Court of Appeal because the only immediate route for review of discovery orders is via writ petition. The odds are greater than 9 in 10 that your writ petition will be denied summarily without reaching the merits.

The real value of Alch will be to trial attorneys trying to convince the trial court in the first instance that denial of discovery would be an abuse of discretion. Because such orders are not immediately appealable, there has always been a dearth of appellate discovery rulings for trial lawyers to cite when arguing a motion to compel or a motion for protective order. Alch’s application of Valley Bank may lead to greater uniformity in trial court decisions, or at least greater attention being paid to the “nuance” of the scope of information sought.

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.

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.)

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.

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, Law Blog, New York Times, and Los Angeles Times,

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.

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.

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

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

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

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

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

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

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

What the Heck IS “Abuse of Discretion,” Anyway?

The “abuse of discretion” standard can be a tricky thing. I’ve heard lawyers ridicule it as a formula for automatic affirmance of the trial court. That is, of course, off the mark. But the breadth of discretion has to be defined for effective appellate review, and even appellate courts sometimes struggle with this standard or mistake it for something it isn’t. (I wrote about the difficulty the Ninth Circuit had in one case last year here, witha related post here and an announcement of my article on the topic here.)

I got to thinking about the complexity of the abuse of discretion standard again when I read a post last week at Legal Writing Prof Blog concerning an oft-quoted definition of the standard from the Fourth Circuit. The post was meant to be amusing, but the quoted definition actually struck me as not too bad. Certainly no worse than the description in Ticconi v. Blue Shield, case no. B190427 (2d Dist. Feb. 27, 2008), in which the court described the abuse of discretion standard in the context of an appeal from an order denying class certification:

“Because trial courts are ideally situated to evaluate the efficiencies and practicalities of permitting group action, they are afforded great discretion in granting or denying certification. The denial of certification to an entire class is an appealable order [citations], but in the absence of other error, a trial court ruling supported by substantial evidence generally will not be disturbed ‘unless (1) improper criteria were used [citation]; or (2) erroneous legal assumptions were made [citation]’ [citation]. Under this standard, an order based upon improper criteria or incorrect assumptions calls for reversal ‘ “even though there may be substantial evidence to support the court’s order.” ’ [Citations.] Accordingly, we must examine the trial court’s reasons for denying class certification. ‘Any valid pertinent reason stated will be sufficient to uphold the order.’ [Citation.]” [Citations.]

It looks to me like there are several standards of review buried in there..

According to this definition, discretion can abused by the court’s employment of an improper legal assumption or improper criteria. That is an improper application of the law. Such questions are usually subject to de novo review. After all, you can’t give a court discretion to apply the wrong law.

Also according to the definition, the court abuses its discretion if it relies on a factual premise for which there is no substantial evidence. So, the substantial evidence standard must be used to determine whether the trial court abused its discretion by relying on a faulty factual premise.

It seems that the true abuse of discretion standard only comes into play after the court of appeal has determined by de novo review that the court employed the proper legal standards and decided on the basis of substantial evidence which of the court’s factual bases are supported. Then, the court can start from that point and determine whether the trial court abused its discretion.

I think Ticconi bears out my thinking, or at least the first stage of it. The court finds that the court analyzed class certification under a mistaken view of the substantive law underlying the claim. Since that mistaken view of the law led it to consider factors that it should not have considered, and to fail to consider facts that it should have, the court remands with instructions to reconsider the class certification motion in light of the correct law and factors for consideration.

Review of “Private Attorney General” Fee Awards

Kimberly Kralowec at The Appellate Practitioner points out a case from earlier this month, Roybal v. Governing Board of the Salinas City Elementary School District, case no. H030596 (Jan. 11, 2008, ordered published Feb. 6, 2008), in which the Court of Appeal neatly summarizes the proper standards of review to apply when reviewing attorney fee awards made pursuant to California’s “private attorney general” statute, Code of Civil Procedure section 1021.5. The case recognizes the Supreme Court’s 2006 departure from the one-size-fits-all “abuse of discretion” standard in recognition that some awards may be due more deferential review in light of their fact-intensive nature, while those revolving around legal issues like statutory interpretation should be closely scrutinized. See her post for the money quote from the case.

Court of Appeal Takes On Dispositive Motions in Limine

I’ve told you about one or two of my lingusitic peeves before. In Amtower v. Photon Dynamics, Inc., case no. H030386 (6th Dist. Jan. 17, 2008), the Court of Appeal takes on one of my peeves about procedure, and I’m glad to see it.

Just prior to trial, the defendant moved in limine to exclude all evidence on one of plaintiff’s claims (the “section 11 claim”) on the ground that the claim was barred by the statute of limitations. The trial court granted the motion. After a jury trial and judgment for defendant on the remaining claims, plaintiff argued on appeal that “the trial court’s use of an in limine motion to adjudicate his section 11 claim deprived him of the right to a jury trial on the statute of limitations issue.” In response, the court gives this preview of its opinion:

Plaintiff’s argument highlights a procedure that has become increasingly common among litigants in our trial courts, which is the use of in limine motions as substitutes for summary adjudication motions, motions for judgment on the pleadings, or other dispositive motions authorized by statute. We have certified this case for publication in order to express our concerns surrounding the proliferation of such short-cut procedures.

The court ultimately agrees that the plaintiff was deprived of his right to a jury trial on the statute of limitations issue, but finds the error is harmless.

The deprivation occurred when the court held a “mini-trial” on the in limine motion, where plaintiff testified as to when he learned of the actionable conduct, and the court made a factual finding that plaintiff learned of the conduct as of a given date that was outside the limitations period.

The defendant didn’t even contest that the running of the statute of limitations is generally a question of fact for the jury, but insisted that in this case “there was no question of fact and that its in limine motion was the proper vehicle for the court to decide the issue as a matter of law.” Is it just me, or does that sound like what summary judgment motions are for?

It’s not just me. The court started its response to this as follows:

Strictly speaking, Photon’s motion was not an in limine motion. In limine motions are designed to facilitate the management of a case, generally by deciding difficult evidentiary issues in advance of trial. “ ‘The usual purpose of motions in limine is to preclude the presentation of evidence deemed inadmissible and prejudicial by the moving party. A typical order in limine excludes the challenged evidence and directs counsel, parties, and witnesses not to refer to the excluded matters during trial. (3 Witkin, Cal. Evidence [(3d. ed. 1986)], supra, § 2011 at p. 1969.) “The advantage of such motions is to avoid the obviously futile attempt to ‘unring the bell’ in the event a motion to strike is granted in the proceedings before the jury.” (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 337.)’ ” (Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 669.) What in limine motions are not designed to do is to replace the dispositive motions prescribed by the Code of Civil Procedure. It has become increasingly common, however, for litigants to utilize in limine motions for this purpose.

The court notes past creative uses of motions in limine to obtain judgment on the pleadings and challenge the sufficiency of the evidence, then advises that the Courts of Appeal are on to these little tricks: “In purpose and effect, the foregoing nonstatutory procedures are merely substitutes for the dispositive motions authorized by statute. Appellate courts are becoming increasingly wary of this tactic.”

One adverse effect of these procedures, notes the court, is on the standard of review. A dispositive ruling on an in limine motion is reviewed as if it were the product of a motion for nonsuit after opening statement, in which “all inferences and conflicts in the evidence be resolved in favor of the losing party and against the judgment.” (Emphasis in original.) Had the issue been decided in favor of the defendant at trial, of course, any inferences from and conflicts in the evidence would be resolved in favor of the judgment. “Thus, some cases will be subject to reversal where, had the trial court just taken the time to hold a trial, reversal would not be warranted. [Citation.]”

Though the court apparently intends its opinion to discourage use of in limine motions as dispositive devices, they nonetheless somewhat grudgingly acknowledge the great leeway that trial courts have in managing litigation means that such use is not per se improper. The court does not outright limit the scope of in limine motions. But it does caution litigants:

[W]hen the trial court utilizes the in limine process to dispose of a case or cause of action, we review the result as we would the grant of a motion for nonsuit after opening statement, keeping in mind that the grant of such a motion is not favored, that a key consideration is that the nonmoving party has had a full and fair opportunity to state all the facts in its favor, and that all inferences and conflicts in the evidence must be viewed most favorably to the nonmoving party.

Applying that standard, the trial court finds a harmless “procedural irregularity”:

In the present case, plaintiff did not make an opening statement. And, unlike the process employed in some of the above-noted cases, plaintiff was not offered the chance to make a comprehensive offer of proof. (See e.g., Michelson v. Camp, supra, 72 Cal.App.4th at p. 960 and Stein-Brief Group, Inc. v. Home Indemnity Co., supra, 65 Cal.App.4th at p. 368.) He certainly was not afforded the detailed procedural protections he would have had if Photon had filed a summary adjudication motion or had the court allowed the statute of limitations defense to be tried separately as contemplated by Code of Civil Procedure section 597. Nevertheless, the perfunctory nature of the proceedings does not warrant reversal if the record shows that plaintiff could not have prevailed under any circumstances. (Atkinson v. Elk Corp., supra, 109 Cal.App.4th at pp. 748-749.) That is the case here. As we shall explain in the following section, plaintiff could not have produced any additional evidence that would have changed the result. Accordingly, the procedural irregularity was harmless.

The bottom line? The Court of Appeal clearly does not like dispositive use of motions in limine, but in light of the inherent power of the trial court to manage litigation, there is little they can do to stop it except to apply a standard of review that does not favor the judgment. It is up to the trial courts to consider the criticism in Amtower and exercise restraint when confronted with such a motion. Will they?

More on Appealable Denials of Summary Judgment

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

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

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

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