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 month 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?

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.

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.

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.

Preferences.

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

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 reviewable on appeal, 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.

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.

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.)

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.

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

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

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

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

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

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

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

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

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

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

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

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

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.

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.

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.

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.

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?

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.

Zapala was charged with two counts — possession of an unregistered machine gun and possession of an unregistered firearm with a barrel less than 16 inches long — under the same statute, 26 U.S.C. § 5861(d). Catch is, those counts were based on possession of the same gun.

Zapala did not object to the indictment, pleaded guilty to all charges without a plea agreement, and did not object to convictions or sentences when they were entered by the district court. Until his appeal, that is, when he claimed the convictions on multiple counts under the same statute for possession of the same gun constituted double jeopardy.

The court finds the convictions and sentences are multiplicitous because under § 5861(d), Congress intended each firearm to be a “unit of prosecution.” In fact, the court has previously found that Congress intended only a single offense per possessed firearm even if it violated all 12 subsections of § 5861.

The court finds that a double jeopardy challenge is not waived by failure to object to convictions and sentences. Under existing Ninth Circuit precedent, a defendant does not waive a double jeopardy challenge by failing to object to mulitplicitous charges in an indictment before pleading guilty. A motion to dismiss the multiplicitous counts prior to sentencing is enough. Further, the Supreme Court has held that a district court has no duty to resolve multiplicitous charges until the jury returns a guilty verdict on them.

The challenge is governed by “plain error” review, under which the court readily reverses because the error is obvious, affects Zapala’s substantial rights, and affects “the fairness, integrity, or public reputation of judicial proceedings.” His substantial rights are affected even though the sentences are concurrent (and thus should not affect his length of imprisonment) because conviction on multiple charges carrries other collateral consequences, including increased monetary liability (a $100 mandatory special assessment on each conviction), possible enhanced sentencing in the future under recidivism statutes, and even consequences “that [the court] cannot foretell at the time of decision.”

The court’s rationale regarding the effect on Zapala’s substantial rights mirrors those in a recent California case. The issue deserves its own blog post, which I’ll get to later.

Its a case brought by a plaintiff who alleges various constitutional violations against city cops.  The jury finds that the cops used excessive force, but did not unlawfully arrest the plaintiff or fabricate police reports.  Both sides appealed.

Issue 1: Sufficent evidence of excessive force?  Well, not so fast.  Writes the court (emphasis mine):

Defendants assert that the evidence was insufficient to support the jury’s finding of excessive force.  At least we so construe their brief, which alludes in passing to the insufficiency of the evidence, but which is actually devoted almost entirely to rearguing the facts.

Talk to just about any appellate jurist, and he or she will tell you that trial lawyers do this all the time.  Not every trial lawyer, of course.  Not even most.  But enough to present a steady stream of attorneys at oral argument arguing passionately to the justices as if they were wearing juror badges instead of black robes.

Issue 2: Qualified Immunity?  Strike Two:

Defendants raise several arguments to the effect that the trial court erred in not sustaining their defense of qualified immunity.  As with the challenge to the evidence of excessive force, their appellate presentation is so fundamentally flawed that it is unnecessary to delve into the applicable substantive law.

The court can’t make heads or tails of this portion of the brief.

Issue 3: Is the federal excessive force claim time barred?  This time, the problem is with the dissenting justice as well as the defendants.  The court says its adoption of the dissent’s position that the court should have granted summary adjudication on the federal excessive force cause of action

is precluded by two seemingly insurmountable obstacles:  (1) defendants have expressly disclaimed any such claim of error, and (2) they never made a motion to adjudicate the “federal excessive force cause of action.”

And still 72 pages to go!

Here’s the description from the book’s page at the West website:

This sophisticated but easy to understand exposition of the standards of review offers an invaluable resource for law students, law clerks, and practitioners. Decisions of the U.S. Courts of Appeals invariably are shaped by the applicable standards of review. “Fill[ing] a huge gap in the literature,” Standards of Review masterfully explains the standards controlling appellate review of district court decisions and agency actions. Leading academics have described the text as a “superb treatment, clear and comprehensive, of a crucial aspect of every appellate case,” that “makes accessible even the most complex doctrines of review.”

Of course, the Ninth Circuit has its own nifty research guide for standards of review, which serves as an excellent starting point for appeals to the Ninth. It is downloadable as three separate PDF files here.

The four defendant Tseng brothers own some real property as tenants in common, which they lease to the California company that imports and sells the clothes produced by their overseas businesses.  Arthur runs the California company and is the only one of the brothers that resides in the U.S.  When Arthur lists the property for sale, he is the only person brokers or buyers deal with, and he is the only brother to sign the sale agreement.  He has no written authority from his three brothers to act on their behalf in the sale.  When the brothers balk after the sales agreement is signed, the buyer sues for specific performance and prevails at trial.

California’s Statute of Frauds is pretty clear on sales of real property.  A contract for the sale of property is invalid unless subscribed by the party to be charged, or subscribed by the party’s agent with the written authority of the party to be charged.  (Civ. Code, § 1624, subd. (a)(3).)

The trial court found that Arthur’s agency was in writing, but the Court of Appeal finds no substantial evidence to support the finding.  Although Arthur had represented during the course of negotiations that he was an authorized agent, there was no written agency agreement introduced at trial and the only testimony on the issue was that the brothers had not granted written authorization.  Though under California’s “secondary evidence rule” (Evid. Code, § 1521) a party may prove the contents of a document through otherwise admissible secondary evidence, there simply was no evidence here that such a document ever existed.

Plaintiff also argued that the authorization to act for the brothers need not be in writing because the sale was within the scope of Arthur’s authority in running the brothers’ business.  No dice.  The sale of real property might be within the ordinary course of a company whose business is holding, selling and buying real property, but it is not within the ordinary course of running a clothing business.

The amazing part of this case is that plaintiff knew at the time of signing the sale agreement both that Arthur was not the sole owner of the property and that an agency to sell property must be in writing . . . yet apparently never demanded to see any written agency authorization or for the other brothers to sign the sale agreement.

First Issue: Respondent did not file a brief in the appeal. Automatic reversal, right?

Wrong. While many people — at least among those who don’t practice in appeals — assume that failure to file a respondent’s brief will mean an automatic win for the appellant, that’s not the case. Appeals are all about reviewing for error. Thus, as the Nakamura court reminds us:

Parker’s failure to file a respondent’s brief means that we “decide the appeal on the record, the opening brief, and any oral argument by the appellant” (Cal. Rules of Court, rule 8.220(a)(2), formerly rule 17(a)), examining the record and reversing only if prejudicial error is shown. [Citations.]

I imagine an unopposed appellant who loses might feel pretty badly about not prevailing, but it may just be that the appeal was doomed from the outset, opposition or not.

In this case, however, no such soul searching is necessary. The Court of Appeal finds that the trial court abused its discretion in denying the restraining order. Which leads us to the second issue.

Second Issue: In an order reviewed for abuse of discretion, how is the scope of the trial court’s discretion defined? Answer: By the scope of the law at issue.

The scope of discretion always resides in the particular law being applied by the court, i.e., in the “legal principles governing the subject of [the] action . . . .” City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297; County of Yolo v. Garcia (1993) 20 Cal.App.4th 1771, 1778 [“range of judicial discretion is determined by analogy to the rules contained in the general law and in the specific body or system of law in which the discretionary authority is granted”].) As Nakamura’s petition is not jurisdictionally defective, it may be summarily denied only if the facts she alleged fail to constitute “abuse” within the meaning of the DVPA.

Here, there was plenty in the applicant’s sworn declaration showing that her estranged spouse committed acts constituting abuse justifying a restraining order under the DVPA.

But I have to wonder how much of a victory this is for the current litigant. The denial of the protective order was more than 14 months before her victory on appeal. Usually, there is great urgency to DVPA restraining orders. At least this should help the next victim of abuse. Which is why, I’m sure, amicus briefs were filed by 11 organizations.

UPDATE (10/25/07):  A Bay Area colleague e-mailed me a link to coverage of this case in the San Francisco Chronicle.

While the jury was deliberating on the drug smuggling charge, the government filed a complaint charging her with the prior two instances of alien smuggling, and she moved to dismiss the subsequent indictment on grounds of vindictive prosecution, claiming that the U.S. Attorney only prosecuted her for the alien smuggling because she exercised her right to testify in her defense on the drug charges. California Appellate Report has a nice write-up on that part of the case.

But before the Ninth Circuit could reach the merits in U.S. v. Jenkins, case no. 06-50049 (9th Cir. July 17, 2007, amended Sept. 25, 2007), it was faced with the unsettled issue of the appropriate standard of review:

The standard of review of a district court’s decision whether to dismiss an indictment for vindictive prosecution is unsettled in this circuit. [Citation.] We have reviewed vindictive prosecution cases de novo, for abuse of discretion, and for clear error. [Citation]

We conclude that the district court’s decision should be reviewed de novo because the issue presents a mixed question of law and fact. The trial court first determines whether the prosecutor’s course of conduct appears motivated by a desire to punish the defendant for exercising a legal right. The court then decides whether the prosecutor has come forth with sufficient evidence to dispel any appearance of vindictiveness. Because our review of these determinations “requires us to consider legal concepts in the mix of fact and law,” de novo review is appropriate. [Citations.]

Two points.

First, note how specifically the court identifies the issue for purposes of assigning a standard of review. The court doesn’t describe the decision under review merely as the dismissal of an indictment, but as the dismissal of an indictment for vindictive prosecution. Lesson: research and apply the standard for the most specific issue that has been previously articulated. And if the court has only identified the general issue before, perhaps you have an argument for a better standard of review to apply to your specific circumstance.

Second, note how succinctly the court settled this issue, compared to its recent resolution in U.S. v. Larson of a similar 3-way split on the standard of review to apply in confrontation clause challenges based on limitations on cross-examination, which I blogged about here and here. Both cases involved an unsettled question regarding the standard of review in a criminal matter. Perhaps the weight of the issue in Larson, where the defendant had already been convicted, seemed greater to the court than the mere dismissal of an indictment.

Citing to the statutory language that allows an Elder Abuse Act protective order to issue upon proof “to the satisfaction of the court,” and noting that the Domestic Violence Protection Act contains identical language for the standard for issuing the order, the Court of Appeal adopts the standard of review applicable to appeals of DVPA protective orders: abuse of discretion.  Of course, the factual findings underlying the order are reviewed for substantial evidence.

The Board of Immigration Appeals denied a motion by the Garcias for leave to file a late brief.  The grant or denial of such a motion is within the BIA’s discretion.

Here, however, the BIA’s order offered no “reasoned explanation” for its denial of the motion:

Denying the Garcias’ motion, the BIA conclusorily reasoned: “We find the reason stated by the respondents insufficient for us to accept the untimely brief in our exercise of discretion.”

This left the Ninth Circuit without any means to conduct a meaningful review for abuse of discretion:

We are similarly “unable to determine from the BIA’s conclusory statement whether it abused its discretion by refusing to accept [the Garcias’] late brief.”  [Citation.]  We therefore remand the petition to the BIA.

Because the BIA could reach a different conclusion on its hardship determination if it considers the Garcias’ brief on remand, we do not reach the Garcias’ other legal or constitutional claims.

Remanded.

What gives a special appellate twist to Fantasyland Video v. County of San Diego, case no. 05-56026  (August 7, 2007) is that the Ninth Circuit asks the California Supreme Court to specify the standard of review to apply in the case.  Plaintiff, operator of an adult “arcade, bookstore, novelty shop, and video store,” challenged a county ordinance that required adult businesses to close between 2 a.m. and 6 a.m.  The question certified by the Ninth Circuit is very specific:

Under the California Constitution’s liberty of speech clause, should we review the constitutionality of an ordinance that sets closing times for adult entertainment establishments under strict scrutiny, intermediate scrutiny, or some other standard?

Another thing I like about this request from the Ninth Circuit is that it doesn’t claim there are no California cases on point.  It says the most relevant case on the issue is impossible to figure out:

We certify the above question to the Supreme Court of California for an authoritative construction of the most directly relevant opinion on the issue, People v. Glaze, 27 Cal. 3d 841 (1980).

In other words, “Please tell us what the heck you were trying to say in that mess (and in the seemingly inconsistent cases that followed).”  But they asked it nicely.

California Appellate Report offers some details on the “frenetic pace” at which the Ninth Circuit has been certifying questions to state supreme courts this year, as well as some tongue-in-cheek commentary on the wisdom of the ordinance challenged in this case.

Section 271 sanction orders are reviewed for abuse of discretion, but the court had no precedent for the standard of review to apply to awards under Section 2107, subdivision (c).  The court determines that abuse of discretion applies here as well, since “the sanction is similar to that imposed under section 271 as well as similar to a sanction for civil discovery abuses (which are reviewed for abuse of discretion).”

USD Law Professor Shaun Martin has the local San Diego angle at California Appellate Report.

We resolve this conflict by concluding that the third approach is most appropriate. We hold that the following approach should be used to review whether a trial court improperly restricted a defendant from cross-examining a prosecution witness: If the defendant raises a Confrontation Clause challenge based on the exclusion of an area of inquiry, we review de novo. In reviewing a limitation on the scope of questioning within a given area, we recognize that “trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such crossexamination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). A challenge to a trial court’s restrictions on the manner or scope of cross-examination on nonconstitutional grounds is thus reviewed for abuse of discretion.

(Footnote omitted.)

I think the court confuses matters with this wording. On its own, it suggests two mutually exclusive dichotomies.

First, a dichotomy between constitutional and nonconstitutional challenges. De novo review would apply to the former and review for abuse of discretion to the latter.

Second, a dichotomy between Confrontation Clause challenges based on the complete exclusion of an area of inquiry, and Confrontation Clause challenges based on limited questioning into an area of inquiry. Again, de novo review would apply to the former while the latter would be reviewed only for abuse of discretion.

It seems clear that the second dichotomy is the intended approach:

Applying this approach here, Defendants’ Confrontation Clause claims challenge the district court’s limitation on the scope of cross-examination within an area of inquiry: the biases and motivations to lie of the Government’s cooperating witnesses, Poitra and Lamere. We therefore review Defendants’ claims for abuse of discretion.

(Emphasis added.)

Yet this last statement seems hard to reconcile with the court’s explanation that the split standard it adopts “recognizes that whether there has been a Confrontation Clause violation is ultimately a question of law that must be reviewed de novo.” If it is ultimately a question of law, then how can review for abuse of discretion ever apply?

Perhaps one way to reconcile these statements is to view the opinion, in cases of limitations on examination rather than exclusion of examination, as an application of the more general principle that a discretionary trial court ruling constitutes an abuse of discretion if based on an incorrect legal conclusion. Here, the incorrect legal conclusion (as to one witness, anyway) was that a Confrontation Clause violation would not result from the court’s limitation of cross-examination. Since the Ninth Circuit finds that such a violation did occur, it concludes that the district court abused its discretion in limiting cross-examination.

The net effect of the court’s opinion appears to be the same as if it had simply adopted a straight de novo standard for all Confrontation Clause challenges. Whether it subjects the challenge to de novo review in the first instance or evaluates the existence of a Confrontation Clause violation in order to determine whether the district court abused its discretion, the court is effectively applying de novo review.

These are only my initial impressions of the opinion, so maybe I am missing something that would be obvious after more careful reading. I remain open to persuasion, and would be very interested in any comments from people who feel differently about the case.

I’ll also be interested to see what Split Circuits and The Confrontation Blog have to say about it.

UPDATE (8/3/07): I’ve put up a new post with links to three other blogs discussing the case.

UPDATE (8/3/07) #2: Make that four other blogs.

Brittalia purchased walnut trees from Stuke and later sued for breach of warranty and other causes of action based on allegations that many of the trees were either the wrong variety or diseased.  There was no single, clearly identified written contract governing the sale.  The parties had a course of dealing during which they had agreed to a transaction, then canceled it, then agreed to a new transaction.  The documents (order confirmation, invoice) memorializing the canceled transaction contained warranty disclaimers and an attorney fee provision.  The documents memorializing the completed transaction (purchase proposal and check for down payment) did not.  The jury rendered a general verdict for Brittalia for $5.4 million, and the court awarded Brittalia $750,000 in attorney fees.  Stuke appealed the judgment and fee award . . .

The Standard of Review.

The Court of Appeal is very careful to identify the contract question at issue in order to arrive at the correct standard of review.  The issue is not one of law for the court because the issue is not what the contract means.  The issue is what the contract is. That is, does the contract include the earlier documents as well as the later ones?  That issue is a hotly disputed factual issue, thus subject to substantial evidence review.  The court affirms the judgment because substantial evidence supports the jury’s implicit finding that the warranty disclaimer in the documents regarding the canceled transaction was not a term of the completed transaction.

Availability of Attorney Fees.

Here’s the really interesting part of the opinion . . .  

If the terms in the earlier documents don’t apply to the completed transaction, then the attorney fee provision cannot be a term of the sale any more than the warranty disclaimer can.  Thus is posed the issue: If the plaintiff asserts that the contract terms do not include a fee provision and the defendant claims that the terms do include a fee provision, does the mutuality requirement of Civil Code section 1717 entitle the prevailing plaintiff to recover fees?

I thought Brittalia had a decent argument it should recover its fees.  After all, section 1717 has long been construed to require mutuality, even when a defendant successfully defends against a contract with a fee provision by proving the contract is unenforceable.  The logic behind that rule is simple: the defendant in such a case must be able to recover fees because allowing only a successful party seeking enforcement of the agreement to recover fees effectively renders the fee provision unilateral in violation of Civil Code section 1717.

Here, the court sees the situation somewhat differently, and rejects Brittalia’s claim that it should be awarded fees.  Because Brittalia did not allege that the contract it sued upon contained a fee provision and Stuke argued that terms from a contract different from the one sued upon included the fee provision, the court concludes “there simply was no ‘mutuality’ of attorney fee remedy that Stuke could have invoked to obtain its attorney fees under section 1717.”

Did the court get it right?  Its reasoning appears vulnerable for a couple of reasons.

First, Stuke wasn’t really arguing that the terms of a different contract applied.  Stuke argued that the earlier documents were part of a course of dealing that made the earlier documents part of the same contract, covering the  same transaction, over which Brittalia was suing.  The parties disagreed about what terms were included.

Second, while it is true that Stuke couldn’t invoke mutuality because Brittalia didn’t assert that the operative terms included a fee provision, why should mutuality only apply when a plaintiff claims a fee provision is in the contract and not when a defendant does so?

Perhaps the answer lies in the court’s final consideration: equity.  The court finds that it would be inequitable to allow Brittalia to recover fees when it asserted that the contract didn’t include a fee provision:

It simply is unfair to award Brittalia its attorney fees under section 1717. Brittalia cannot be allowed to win on its contract action by championing one contract without an attorney fee provision, and then turn around and ask for attorney fees as prevailing party based on a different contract, with an attorney fee provision, that Brittalia had to defeat to secure its victory.

But this reasoning likewise seems flawed.  If the court’s characterization of the documents as two different contracts is based on the implicit jury finding, then the court’s holding seems to produce exactly what Civil Code section 1717 prohibits: a unilateral fee provision.  Because Brittalia won on a contract it insisted did not provide for fees, it was not entitled to them.  But had Stuke won because the jury decided that the warranty disclaimer applied, the attorney fee provision would have likewise applied, and Stuke presumably would have been entitled to its fees.

My analysis in the preceding paragraph presumes, of course — as did Brittalia’s argument — that Stuke would have been entitled to recover fees had it prevailed by proving that the warranty disclaimer (and thus the fee provision as well) was part of the contract.  Oddly, though, the court never answers this question.  Perhaps that is why it does not see the lack of mutuality in its holding — it presumes, but never tells us, that Stuke could not have recovered its fees, either.

Let’s look at the pertinent postion of Civil Code section 1717 (emphasis added):

In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.

The emphasized language is pretty tough to get around.  Had Stuke stated an affirmative claim based on including the warranty and fee provisions in the contract, it’s hard to see how section 1717 wouldn’t apply.

One effect of the decision is that it appears to place the power of deciding whether fees are at stake solely in the hands of the party seeking enforcement.  That may be in line with the intent of the staute, which addresses provisions awarding fees “which are incurred to enforce that contract.” 

Here, Brittalia initially defined the scope of what it contended was the contract and sought to enforce it.  But suppose instead that Stuke had sued for nonpayment and asserted the contract terms encompassed the fee provision in the earlier documents.  Wouldn’t that require a fee award to Brittalia if Britallia established that the fee provision was inapplicable?  What if Stuke had filed a crossclaim for breach of contract, making the same assertion?

I wonder whether Brittalia’s lawyers formed a strong opinion early in the case that Brittalia would be entitled to fees if it prevailed, or if they merely saw an opening at the end of the case.  It’s hard for me to belive they didn’t consider it early and repeatedly, especially with a case so expensive to litigate.  Were they shocked by the result?

This area of the law is just not as simple as Section 1717 might lead one to believe.  Trial counsel must very carefully evaluate whether their clients will be able to recover — or may be liable for — attorney fees at the end of the case.  They may have a hard time forming a concrete opinion.

Now, just pray the trial judge doesn’t screw it up.

Yesterday’s Supreme Court opinion in The Oakland Raiders v. National Football League, case no. S132814 (July 2, 2007) demonstrates again that no winner of a new trial can have confidence in the order granting the new trial unless the court specifies its reasons in the order or files its specification of reasons within 10 days of the order, as required by Code of Civil Procedure section 657.  In this case, the court’s failure to specify its reasons results in a different standard of review on appeal that effectively shifts the burden of persuasion from the party appealing the order granting the new trial to the party defending the appeal . . .

In this dispute between The Oakland Raiders and their owner, the ever-colorful Al Davis, the trial court granted The Raiders’ motion for new trial on the ground of juror misconduct.  The Raiders had submitted juror declarations that juror J.A. had openly expressed severe bias against The Raiders during deliberations and that juror L.H., who was an attorney, committed misconduct by injecting her view of the law into the deliberations.  There ensued from there a battle of juror declarations, with the NFL submitting declarations from the alleged misbehaving jurors and others denying the accounts in the moving declarations, and The Raiders submitting yet more juror declarations in reply.  The trial court’s order granting the motion stated it was doing so on the ground of juror misconduct but did not specify its reasons, nor did the court file a separate specification of reasons within the jurisdictional 10-day limit.

Ordinarily — that is, if the trial court had filed the required specification of reasons for granting the new trial — the grant of the new trial would have been subject to review for abuse of discretion, and it would be up to the party appealing the grant of the new trial to convince the reviewing court that the new trial should not have been granted.  However, since in the absence of the specification of reasons the reviewing court in this case could not determine whether the trial court granted the motion on the basis of J.A.’s bias, L.H.’s misconduct, or both, the Supreme Court holds that “independent review” is the proper standard of review. 

Under the “independent review” standard, the court of appeal was not required to show deference to the trial judge’s factfinding because the trial court failed to set forth findings.  The burden thus falls to the party that actually won the new trial motion — the respondent on the appeal  — to convince the reviewing court that the new trial should have been granted.  In other words, the roles of appellant and respondent are reversed regarding the burden of persuasion on appeal.  Under this “independent review” standard, the Supreme Court holds that The Raiders did not meet that burden of persuasion because “the testimonial evidence submitted by the parties in the form of juror declarations is sharply conflicting on every material issue, and the Raiders submitted no other evidence to support their motion for a new trial.”

For football fans, there is plenty of news coverage about the case.  For lawyers, the important part is . . . well, you just read it.  But you should also read the case, especially if you are a trial lawyer, because it details additional pitfalls in the new trial procedure. The bottom line is that a successful new trial movant is at the mercy of the court when it comes to the specification of reasons.

I have more thoughts on the case, not yet fully formed and requiring a second look at the opinion.  (Besides, this post is already long enough!)  If my thoughts pan out like I think they will, I’ll post a follow-up.

UPDATE (7/4/07): There is also some coverage at How Appealing and Law.com.

There is a lot that can be written about this process, but this post is limited to points raised in last Friday’s decision in the Fourth District Court of Appeal case of Ermoian v. Desert Hospital, case no. E036982 (June 22, 2007).  The published portion of the case contains some good nuggets for trial counsel who may be involved in a bench trial.

First, the case is a pretty decent primer on the doctrine of implied findings.

Second, the case emphasizes that the doctrine of implied findings binds the hands of the Court of Appeal.  The court takes the doctrine seriously and is not likely to look for ways around it.  In fact, in this case, the court asked for supplemental briefing about whether the appellant had brought inadequacies in the statement of decision to the trial court’s attention.

Third, it holds that some purported objections to the statement of decision simply don’t count.  A notice pursuant to rule 8.130 (formerly rule 4), California Rules of Court, pursuant to which an appellant who orders less than a complete reporter’s transcript must state the points to be raised on appeal, doesn’t cut it.  It is intended for the clerk of the superior court, not the court itself, and the mere recitation of points to be raised on appeal would not put the superior court on notice of statement of decision deficiencies in any event.  Nor is it enough to object to the entire proposed statement of decision drafted by your adversary (at the request of the court) with a demand that the court prepare its own statement.  This amounts to nothing more than a second demand for a statement of decision.  Objections must be specific enough for the court to be able to take corrective action.

Fourth, the statement of decision need not respond point by point to every purported contested issue in the request for the statement of decision.  It is enough for the superior court to disclose its determinations “as to the ultimate facts and material issues in the case.”

Sound advice to trial counsel as to the doctrine of implied findings and the statement of decision process: Learn it.  Live it.  Love it.

Update (6/25/07): The Appellate Practitioner has a post about the case, with special mention of the court’s handling of the premature nature of the appeal.  You’ll recall I posted about “saving” premature appeals here, wondering whether the practice might someday be challenged in the Supreme Court.  The Appellate Practitioner’s point highlights the implication in the headline for this post — while the Court of Appeal seems often to go out of its way to preserve a procedurally improper appeal, it does not appear to be nearly as generous in construing various filings as proper objections to a statement of decision, at least not judging by the facts of this case.  Then again, the objections in this case were not substantively sufficient either.  In the right case, however, where the objections are specific enough and presented to the superior court, even by an improper procedure, might the court grant some leeway?

There is one other interesting aspect of the decision.  The appellant contended, for reasons the court opinion does not disclose, that she was entitled to de novo review of the evidence on negligence and causation.  The Court notes that the only situation in which de novo review of factual findings is appropriate is where only one reasonable inference can be drawn from undisputed facts, and finds way too many such disputes to apply the de novo standard.  Thus, the Court of Appeal evaluates the evidence under the venerable “substantial evidence” standard.  The disputes seem so obvious that I’m left to wonder if the appellant did not advance some other basis for de novo review that the court simply decided not to set forth in its opinion.