Four added to pool of prospective First District Justices

The Recorder reports on three judges Governor Brown has asked to have evaluated for vacancies on the First District Court of Appeal.

Brown has asked the State Bar’s Commission on Judicial Nominees Evaluation to vet San Francisco Superior Court Judge Marla Miller, Contra Costa County Superior Court Judge Diana Becton and ACLU staff attorney Linda Lye for openings on the San Francisco-based appellate court.

Therese Stewart of the San Francisco city attorney’s office is also being evaluated by the commission.

Of course, everything will remain up in the air for a while.
Submission of a name to the commission usually indicates serious interest on the governor’s part, though there are now only two vacancies on the First District, and other prominent judges and attorneys are said to have expressed interest.
See the article for some background on these candidates.

Some Highlights from the 2013 Court Statistics Report

Would you like to know how busy Court of Appeal justices are? Maybe you’re curious instead about the odds of getting that writ petition you’re considering heard on the merits. Those curious about court statistics have a friend in the Judicial Council of California, which publishes annual statistical reports and has release its 2013 Court Statistics Report: Statewide Caseload Trends 2002–2003 through 2011–2012 (available as a PDF and in an MP3 audio format). The report covers data through the close of fiscal year 2012. (All references to years are to fiscal years.)

I finally got a chance to look at it over the weekend, and here are a few of the things I found interesting from my first pass through the report:

Number of contested appeals per authorized justice (statewide): 209. That is the lowest number of contested appeals since 2005, but there has not been a lot of variation over the years, with that number peaking at 225 in 2008. Keep in mind that is a statewide number. Your local justices may be much busier or have much less on their plates. The “per justice” calculations are based on 21,894 contested matter, of which well over one third are original (writ) proceedings. It will be interesting to see how that number changes for 2013, with the bottleneck created in the trail courts because so many departments have closed up shop due to budget cuts.

Juvenile and criminal cases continue to make up the vast bulk of all appeals. Of the 13,498 appeal filings in 2012, almost two-thirds of appeals came from criminal cases (more than 40% of all appeals) and juvenile dependency cases (just over 20% of all appeals).

Civil appeal reversal rates continue to hover below 20%. In 2012, 18% of civil appeals obtained a reversal of the trial court judgment. Potential appellants need to keep in mind that the standard of review applicable to a case, and the strength of any particular case, can change those odds significantly. Another 9% of civil appeals that were affirmed with some modification, but some of those modifications might be pretty meaningless to appellants.

Your civil appeal might not take as long as you think. Weary litigants can be reluctant to appeal because, in addition to the abstract 1-in-5 odds of prevailing, they see the appeal as more time spent in court and they just “want the damn thing to be over.” They find living with the judgment preferable to prolonging the case, and sometime will file an appeal only in the hope that it will generate some leverage for settling on terms more favorable than those imposed by the judgment. There are a few things wrong with that mindset, which deserve their own post, but when thinking of the appeal as “additional litigation,” you (the appellant)  should keep in mind that 90% of appeals statewide result in a written opinion within 15 months of the date the notice of appeal is filed. The Third District (in Sacramento) seems to be the slowpoke, resolving 90% of their appeals in around 18 months, while congratulations seem to be in order for the First District (if you value prompt resolution), which was the only multi-division district to have every one of its divisions beat the statewide average, and Division 5 of which had the lowest time to opinion in the state: about twelve and one-half months (382 days).

Riverside Appeals Court goes 3-for-3 with the Supremes

That’s one of the interesting things you can learn from the chart that accompanies a front page article in yesterday’s Daily Journal. District 4, Division 2, sitting in Riverside, is one of only two divisions to have a perfect record on the review of its decisions by the California Supreme Court in the last twelve months. The other is First District, Division 1, which had only one case reviewed. Three divisions had no decisions reviewed by the Supreme Court in that period.

While Division 2 in Riverside was batting a thousand, their Fourth District colleagues in Division 3 (Santa Ana), batted .ooo, getting reversed on all five cases reviewed from that division.

The main thrust of the story, covered by Ben Shatz at Southern California Appellate News, is how Justice Rushing of District 6 is the most-reversed Justice in the state for the last twelve months. Five of the decisions he wrote were reversed, as was the decision in a sixth case in which he sat on the panel.

I loved what Justice Rushing had to say about one of the reversed cases: “I would have decided [it] the same way even if someone had told me the Supreme Court was going to come down and beat me up about it.”

Another good quote from the article came from an appellate lawyer, Dennis Maio, who served for 20 years as a staff attorney at the Supreme Court: “If you are someone who writes very provocatively and stakes out a position, you are going to be noticed more, and because you are noticed more you are more likely than not going to draw criticism.”

For a more amusing take on how getting noticed is not always a good thing, here’s Steve Martin, in a scene from 1979’s The Jerk:

Big city justices roll into Napa

The First District Court of Appeal convened yesterday in Napa to hear two criminal cases at a public auditorium before about 400 high school students. The justices also treated the students to a Q&A session.

Given that most people’s exposure to the law through the entertainment media nearly always involves a trial, this session strikes me as an excellent opportunity to educate the public about appeals. After all that exposure to movie-version trials, one suspects that the typical student, unless adequately briefed on the proceedings beforehand, would walk away from an appellate hearing saying to himself, “That’s it?” I’m curious whether that sentiment came out during the Q&A or in the preparation leading up to the event.

Also anticipating that sentiment was the reporter who wrote the article run by the Napa Valley Register the day prior to the session, who apparently had brief experience covering appellate decisions, and offered this comparison of trial and appellate proceedings:

While jury trials have some drama, what with the grilling of witnesses and introduction of eye-opening evidence, trials also can be tedious.

At the court of appeals, it is literally stand and deliver.

A lawyer has 20 minutes or so to persuade the court he or she is right, with the other side firing back from steps away. Either side can be undone by the justices, who can ask whatever they want whenever they want of whomever they want, making hash of a lawyer’s best-laid plans.

This actually strikes me as a a pretty fair layman’s synopsis of the differences between trial and appellate proceedings. It’s no doubt enough to scare some people out of ever considering appellate practice (probably the same people who prayed all during law school that their professors would not call on them in class). For the well-prepared appellate advocate, it not only can be a great challenge, it can also be quite enjoyable.

By itself, however, the comparison does not answer the “that’s it?” query. There are plenty of subtleties (and a heck of a lot of preparatory work!) involved in every oral argument. I will continue to write on those topics, but you can see what I mean by some of my earlier posts on the topic of oral advocacy.

The Liberty of the Court of Appeal

Several months ago, I posted about a local court of appeal decision, Cuccia v. Superior Court, case no. B197278 (July 16, 2007), that chided the trial judge for not following the rules of stare decisis:

The doctrine of stare decisis requires a trial court to follow an unambiguous published holding of the Court of Appeal, even if the trial court believes that the appellate opinion was erroneously decided. This, we had assumed, was fairly obvious to every trial court judge; that is, until now.

The court went on to state that a trial court that disagrees with the precedent “should make a record articulating why it believes the binding opinion is erroneous and should be revisited by the appellate court which is free to either disagree with or overrule the opinion.” (Emphasis added)

Another reminder of the liberty the Court of Appeal has in overturning decisions — or in not following the decision of another district — arrives in the form of In re Pope, case no. C051564 (3d Dist. Jan. 8, 2008), in which the Third District of the Court of Appeal explicitly rejects the holding of a recent case in the First District (emphasis added):

The superior court’s ruling was based on a decision of the Court of Appeal, First Appellate District, Division Two. (In re Phelon (2005) 132 Cal.App.4th 1214 (Phelon).) The superior court was required to follow Phelon. We are not so restrained. In our view, Phelon was wrongly decided.

A Court of Appeal typically will not depart from precedent decided in other districts.  But there is no procedural rule that prevents them from doing so in the appropriate case.  Don’t give up on a case where there is bad Court of Appeal precedent when you can make a good argument that the court should depart from it.

Death Penalty Appeals to Shift from Supreme Court to Court of Appeal?

Monday’s announcement that the Supreme Court is seeking a constitutional amendment to have death penalty appeals heard in the Courts of Appeal (press release here) has predictably triggered blog coverage.

Legal Pad calls the announcement a “bombshell,” poses several questions regarding the potential impact of such an amendment, and seeks answers from their readers.

Crime & Consequences questions whether the proposed summary affirmance procedure for the Supreme Court to affirm Court of Appeal dispositions is functionally any different from discretionary review. The first comment on the post questions the propriety of justices “publicly lobbying to modify their jurisdiction” because practitioners who appear before them will be hesitant to publicly oppose the change.

And all the way from Texas, the StandDown Texas Project links to some California newspaper articles and coverage by the Associated Press.

Consumer Attorneys Sue Supreme Court over Case Publication Rules

Newport Beach personal injury firm Bisnar | Chase announced on its California Injury Blog that it has filed suit against the California Supreme Court and a district of the Court of Appeal. While not 100% clear from the post, it appears that the firm is representing a personal injury client who alleges his due process and equal protection rights were violated by the Court of Appeal’s failure to publish its decision reversing a judgment after jury verdict in his favor against Southern California Edison. Specifically, it appears the Court of Appeal — presuming I tracked down the right decision on Westlaw — reversed the award because it found as a matter of law that the Edison employee who injured the plaintiff was not acting within the scope of her employment at the time.

Writes John Bisnar in the post:

When an appellate court issues a decision like that, it used to be a traditional expectation to express that in a written opinion, elaborating the reasoning behind that decision. Unfortunately, most recent rules imposed by the State Supreme Court have changed that expectation. Now, only opinions that “make law” are published.

Actually, the standards for publication have recently been liberalized. Changes to California Rule of Court 8.1105(c) that took effect last April were, according to this December 2006 press release from the Judicial Council, intended to:

clarify the criteria for publication for both justices and attorneys, better ensure the publication of all those opinions that may assist in the reasoned and orderly development of the law, and improve public confidence in the publication process.

The Bisnar | Chase blog post does not specify the actual causes of action pleaded in the complaint or the relief sought. If I can get my hands on a copy of the complaint, I’ll fill you in.

UPDATE (10/19/07): Welcome to everyone following the link from Appellate Law & Practice, and thanks to “S. COTUS” for the link.

I didn’t realize when I put up this post that Howard Bashman pointed out this lawsuit more than a week ago at How Appealing. When he saw my post, he was kind enough to e-mail a link to news coverage by McClatchy that explains at least part of the relief sought by the plaintiff. Before I was able to update this post with information from the article, I saw that the suit is the subject of Bashman’s column this week. He bases his analysis, however, on the McClatchy piece and the attorneys’ blog post, not the actual complaint.

Now I’m really interested in seeing this complaint. I’ll check its availability on PACER over the weekend. Look for another update before Monday.

UPDATE (10/20/07): This is frustrating. I found the case on PACER for the U.S. District Court for the Northern District of Califronia: Hild v. California Supreme Court, case no. 3:07-cv-05107-TEH, assigned to District Judge Thelton E. Henderson. Magistrate Judge Joseph C. Spero recused himself. The docket sheet describes the case as one for declaratory judgment.

That’s the best I can do from the information on PACER, because the complaint is not downloadable. (This is a pet gripe of mine. The documents in any given PACER docket that are downloadable seem completely random. Documents critical to understanding the case, like a complaint, are sometimes not downloadable, while documents relevant to nothing but scheduling are. Does anybody know if this is deliberate, or what PACER’s policy is?)

In any event, the McClatchy piece and Bashman’s column (definitely worth a read) together suggest that the plaintiff is seeking publication of his appellate court decision in order to increase the odds of Supreme Court review and perhaps even a right to have the appeal reheard on new briefs that include citations to unpublished cases and treating those cases as precedential. But I have to say that requires some reading between the lines and may not be accurate at all.

I’ve requested a copy of the complaint from Bisnar | Chase. If anyone knows somebody who may have a copy of the complaint — perhaps a reporter at the Daily Journal? — I’d appreciate it if you would e-mail me contact information for that person. Surely, there must have been an article in the Daily Journal about this case. I don’t have an account with them, so I would appreciate it if someone could e-mail me a link to news coverage in the Daily Journal — or any other source for that matter.

UPDATE (10/22/07): A colleague was kind enough to send me the October 5 Daily Journal article about this lawsuit.  About the only new thing I learned from it is that the suit apparently claims that under the liberalized guidelines I mentioned in the original post, the Court of Appeal should have published the Hild decision because it “‘dramatically broke new ground’ holding the facts of the unintentional accident were ‘indistinguishable as a matter of law’ from rape/sexual battery and intentional tort cases.”  (That quote is from the article, apparently quoting from the complaint.)

This will be one to watch, but absent new developments, I don’t think I’ll be adding anything.

2007 Annual Report on Judicial Branch

This press release (PDF dowload) from the Judicial Council of California announces the release of its 2007 Annual Report (PDF Download).

[The report is] a summary of the judicial branch’s significant progress and challenges in improving court administration and equal access for all Californians. 

***

The report highlights the branch’s efforts, in cooperation with the legislative and executive branches of state government, to improve service to the public and describes key trends in court caseloads and workloads.

Study of Sanctions in Appellate Proceedings

Ben Shatz, whom I’ve had the pleasure of meeting and corresponding with from time to time, has co-authored (with JoAnne Sweeny) an article recently published as “The Price of Frivolity: A Longitudinal Study of California Appellate Sanctions” (2007) 28 Whittier L.Rev. 1087.

Here’s how the article describes itself in its introduction:

This article attempts to fill that void [in literature regarding sanctions] by exploring the “5 W’s” — who, what, where, when and why — of California appellate sanctions by analyzing court of appeal sanctions awards from 2002 (the first year unreported cases were included in online search engines) through 2005.  More specifically, this article describes which courts award sanctions, how much is awarded (compared to how much was requested), how often courts awarded sanctions upon their own motions, what kind of errors (and how egregious) are necessary for an award, and against whom sanctions are awarded (parties, their attorneys, or both).

I’ve read the entire piece and find this introductory statement understates the depth of the article.

Few readers, I’m sure, will be surprised to learn that the article confirms that solo/small firm lawyers are sanctioned more often than lawyers from larger firms.  The article looks at this in a purely statistical sense.  Other commentators, of course, have alleged a bias against solos and small firms when it comes to discipline.  A good starting point for those who are interested is this post at Carolyn Elefant’s “My Shingle” blog, which includes links and a comment that offers some very plausible, bias-free reasons for the disparity.  That post addresses ethics committees, but Carolyn has also blogged on bias in the courts.  In this post, she comes to the defense of a “big firm” partner against whom a Florida judge issued an OSC re contempt for saying the judge was a “few french fries short of a happy meal,” and she links to her earlier posts on anti-solo judicial bias.

I was struck by how many of the cited cases were unreported.  The Court of Appeal should want to publicize the conduct that leads to sanctions, because this would inform and deter.  It could be that sanctions are so rare (awarded in approximately 1 out of every 500 cases during the studied period) that the Court of Appeal finds additional deterrence unnecessary.  Whatever the reasons for unpublished sanctions opinions, perhaps more of them will be published under the new rules for publication.

Unfortunately, there is no online version of the article available.  If that changes, I’ll let you know.

UPDATE: My more recent thinking (2014) on publication of sanctions opinions is here.

Will the Supreme Court Revisit Clemmer v. Hartford Insurance Company?

Probably no Supreme Court opinion has been more ignored by the Courts of Appeal than Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865.  In Clemmer, the Supreme Court concluded, without explanation, that an order denying a motion made pursuant to Code of Civil Procedure section 663 to vacate the judgment and enter a new judgment is not appealable and dismissed the appeal.  Because it reached this conclusion without explanation, despite precedent to the contrary, and because the dismissal had no procedural effect (the issues raised were heard on appeal from the underlying judgment), this conclusion in Clemmer has been characterized as dictum and has generally not been followed. See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 154, p. 220.

Nearly thirty years of disrespect for Clemmer so far hasn’t been reason enough for the Supreme Court to revisit the issue, but the Second District Court of Appeal, Division Seven, may have just forced the Supreme Court’s hand by going out of its way to actually follow Clemmer in City of Los Angeles v. Glair, case no. B190031 (July 25, 2007), dismissing an appeal because the order denying a statutory motion to vacate is not appealable.

There’s more to this case.  Though the Court of Appeal dismissed, it didn’t do so before first trying every which way to find jurisdiction, including a generous characterization of the appellant’s post-trial motion as a motion to vacate.

First, the procedural facts . . .
Read More »

Writ Opinions

When nearly 92% of all original proceedings in the California Court of Appeal are dismissed without written opinion (for fiscal year 2005-2006, the latest year for which statistics are provided in the 2007 Judicial Council report), it would be nice if the Court of Appeal would, in any given case, explain why that particular case made it past summary dismissal to review on the merits.  Too frequently, a writ opinion is silent on this question.

I can’t offer empirical evidence, but my observation is that the Ninth Circuit addresses this issue explicitly much more consistently in its writ opinions.  This is probably because its decisions usually evaluate the Bauman factors, as we are reminded by Douglas v. United States District Court for the Central District of California, case no. 06-75424 (July 18, 2007):

Because a writ of mandamus is an extraordinary remedy, we have developed five factors that cabin our power to grant the writ:

1. “The party seeking the writ has no other adequate means, such as a direct appeal, to attain the relief he or she desires.”

2. “The petitioner will be damaged or prejudiced in a way not correctable on appeal.”

3. “The district court’s order is clearly erroneous as a matter of law.”

4. “The district court’s order is an oft-repeated error, or manifests a persistent disregard of the federal rules.”

5. “The district court’s order raises new and important problems, or issues of law of first impression.”

Bauman v. U.S. Dist. Court, 557 F.2d 650, 654–55 (9th Cir. 1977).

I wish the California Court of Appeal was as methodical.  It would make for a much better developed body of law on when the court will exercise its discretion to review a writ petition on the merits.

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Stare Decisis and the “Wrongly Decided” Controlling Case

Yesterday, I posted about a mild barb at the trial court delivered by the Court of Appeal in Cuccia v. Superior Court, case no. B197278 (July 16, 2007). This post concerns the summary the Court of Appeal gave for how a California trial court should handle controlling precedent that it feels was wrongly decided.

A trial court has no choice in such a situation but to follow the case. But “the trial court should make a record articulating why it believes the binding opinion is erroneous and should be revisited by the appellate court which is free to either disagree with or overrule the opinion.”

The court stresses that this is not a hollow remedy, because the Court of Appeal can be influenced by a persuasive analysis by the trial court. It does take time, though.

Third Party Beneficiary to Contract May Invoke Attorney Fee Provision

A few days ago, in my post “Of Walnut Trees and Attorney Fees,” I took issue with the Third District Court of Appeal’s holding that a party suing on a contract that it alleges does not include an attorney fee provision is not entitled to recover attorney fees notwithstanding that the defendant alleges that additional written terms of the contract contain an attorney fee provision.  Yesterday, a different panel of the Third District Court of Appeal and I agree on the attorney fee issue in Laduca v. Polyzos, case no. C050757 (July 16, 2007).  The issue is whether the property owner, as a third party beneficiary of the contract between the general contractor and subcontractor, is able to invoke the attorney fee provision of the general-sub contract when the owner brings suit on the contract directly against the sub.

The court says the property owner is entitled to attorney fees under the general-sub contract.  The property owner is indisputably an intended third party beneficiary of the general-sub contract, the attorney fee provision is extremely broad, and the contract imposes no limitation on third party rights.  Thus, the third party beneficiary’s right to enforce the contract includes the right to enforce the attorney fee provision.

2007 California Court Statistics Report Now Available

The 2007 Court Statistics Report: Statewide Caseload Trends, 1996-1997 through 2005-2006 from the Judicial Council of California is now available for download here.  This 156-page report has all sorts of interesting statistics on activity in the courts.  What percentage of petitions for review are granted by the Supreme Court?  What percentage of writ petitions are summarily denied?  What percentage of appeals result in reversal?  How many traffic misdemeanor cases were filed in 2005-2006?  For answers to these and other questions over the most recent 10-year period for which statistics are available, download the report.

Of Walnut Trees and Attorney Fees

Two interesting and “bloggable” issues are raised and decided by the Third District Court of Appeal in Brittalia Ventures v. Stuke Nursery Co., Inc., case no. C0478374 (July 10, 2007).  One regards the proper standard of review when the terms of a contract are disputed.  The second, and more interesting, concerns post-trial motions for attorney fees.

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 . . .  

Read More »

American Express Waives Arbitration through Settlement Misrepresentations

Remember that case in contracts class about whether promising to do something you were already going to do constituted consideration for a promise?

The lawyers for American Express in the First District Court of Appeal case of Aviation Data, Inc. v. American Express Travel Related Services Co., Inc., case no. A111602 (July 6, 2007) apparently didn’t remember that day in contracts class.  So they promised during class action settlement negotiations to implement a computer program in exchange for a release of claims . . . even though AmEx had already been using the program for two years.  Then, as part of proceedings for court approval of the settlement, AmEx made a sworn statement to the court that AmEx was implementing the program as a result of the settlement.

The settlement fell apart after these misrepresentations came to light.  American Express moved to compel arbitration, the trial court said, “No,” and the Court of Appeal affirms. 

Evaluating AmEx’s arbitration provisions with its individual customers under the Federal Arbitration Act, the court finds that the public policy favoring settlement (which generally precludes settlement efforts from being deemed a waiver of arbitration) loses against other policy considerations:

But competing here against the public policy favoring settlement is the equally important value that settlement—and most certainly one that may affect thousands, perhaps millions of absent class members—should not be achieved through deceit upon the court and parties. Public policy concerns support the rule that parties must indeed be free to attempt to settle their disputes without losing their arbitration right if settlement fails. We perceive, however, no policy justification to extend this principle to encompass attempts to secure judicial imprimatur and finality on settlements obtained through misleading or deceptive tactics. We will not take such a remarkable step.

But the court does not rely on the misconduct alone.  Instead, it evaluates prejudice to the plaintiffs, and finds plenty of it.

Discounted Third Party Purchase of Medical Account Doesn’t “Hanif-y” Plaintiff’s Recovery

Mention Hanif v. Housing Authority (1988) 200 Cal.App.3d 635 to a personal injury lawyer, and he’ll likely bristle.  Hanif, along with Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298, held that an injured tort plaintiff may recover only the amount of medical expenses he or she paid or incurred, even if the reasonable value of those services is much higher.  Thus, a medical provider who writes down the bill or accepts a lesser amount from an insurer as payment in full effectively reduces the potential recovery of the plaintiff.

Should the same rule apply if the medical provider sells the plaintiff’s account (including a lien against plaintiff’s potential recovery) to a third party financial services company at a discount, even though plaintiff remains liable (now to the financial services company) for the full amount of the services?  No, says the Third District Court of Appeal in Katiuzhinsky v. Perry, case no. C050376 (June 29, 2007).  As long as the plaintiff legitimately incurs the medical expenses and remains liable for their payment, plaintiff may recover the billed amount regardless of the discount at which his account was sold to the third party.

My Eyes Weren’t Deceiving Me After All

So there I am, browsing the names of the opinions published yesterday, when I see it.  Can’t be right, I think.  I rub my eyes, look again.  Still there.  So I access the actual opinion, thinking that the name listing must be the result of some technical glitch.  Nope.  The names of the parties are on the opinion plain as day in NMSBPCSLDHB v. County of Fresno, case no. F050094 (June 26, 2007)

So I wonder whether the plaintiff is an “artist formerly known as” something else.  I’m so curious that I run a party name search in the Fifth District Court of Appeal and turn up several related cases with the same party.  And one of them solves the riddle.  NMSBPCSLDHB is a California limited partnership.

The court in this case used “NMS” as its shorthand reference for the plaintiff.  I think I might have used “Alphabet Soup.”

An Appealable Discovery Order

Most parties faced with an adverse discovery ruling have to grin and bear it.  Discovery orders are not generally appealable, and a writ petition is such a longshot that unless the ruling threatens a trade secret or similarly sensitive confidential information, the writ petition hardly seems worthwhile.  In H.B. Fuller Co. v Doe, case no. H030099 (May 31, 2007), California’s Sixth District Court of Appeal reminds us of a rare occasion when a discovery order is appealable. 

Doe sought to quash a subpoena directed to an internet company.  The subpoena sought information that would identify the person (Doe) who posted Fuller’s confidential company information on internet message boards.  No lawsuit was pending in California, and Doe’s identity was apparently necessary before Fuller could commence suit in its home state of Minnesota.

In a decision limited to Doe’s motion to unseal the record and briefs on appeal, the court first addressed the issue of appealability.  It found this discovery order was appealable because “the order is ancillary to litigation in another jurisdiction and operates as the last word by a California trial court on the matters at issue.”  Thus, even though the court could readily have chosen to construe the appeal as a writ petition, it found it unnecessary to do so.

This is a great case to remember.  Dire circumstances justifying writ review won’t always be present when a client gets hit with an unfavorable discovery order arising from litigation in another jurisdiction.  Being able to appeal greatly expands the cases in which review may be invoked.

Appellate Jurisdiction: Order Denying Motion to Vacate

An order denying a motion to vacate usually isn’t appealable unless the motion is a statutory motion under Code of Civil Procedure section 663.  But in Carr v. Kamins, case no. B191247 (May 31, 2007), the California Court of Appeal reminds us of an exception.

The plaintiff in this adverse possession suit served the defendants by publication, after which default and default judgment were entered.  Four years later, one of the defendants later moved to vacate the default judgment on the ground that plaintiff committed fraud in procuring the order for service by publication and that the default judgment was obtained in violation of her right to due process.  The trial court denied the motion, and defendant appealed.

The court rejected the plaintiff’s contention that the order was not appealable.  The reason: the order gave effect to a void judgment, and any order doing so is itself void and appealable as a special order after judgment under Code of Civil Procedure section 904.1, subd. (a)(2), even if no appeal is taken from the underlying judgment.

Liberalized Standards for Publication of Appellate Opinions

Professor Martin jokingly pleaded with the Ninth Circuit and California Court of Appeal to “slow down last” week.  The California Court of Appeal issued 32 decisions in a 3-day span starting on May 29.

I know Professor Martin was reacting to a rather short-term spike, but could it be that the liberalized rule for publication, which only recently went into effect, is starting to show results?

Since April 1, 2007, publication of appellate opinions has been subject to more liberal standards of publication under rule 8.1105(c).  The changes are summarized by the advisory committee at p. 57 of its report.  They:

(a) Replace the presumption against publication with a presumption in favor of publication if the opinion meets one or more of the criteria specified in the rule;

(b) Clarify and expand the criteria that the Courts of Appeal and the appellate divisions of the superior courts should consider when deciding whether to certify an opinion for publication; and

(c)  Identify factors that should not be considered in deciding whether to certify an opinion for publication.

A press release from the Supreme Court last December also summarizes the changes and provides a comparison of the old and new rule, and quotes from the report in stating that the changes should:

clarify the criteria for publication for both justices and attorneys, better ensure the publication of all those opinions that may assist in the reasoned and orderly development of the law, and improve public confidence in the publication process.

Whether a recent spike in opinions reflects these changes or not, we should certainly see an increase in the percentage of published opinions over time.

Anti-SLAPP Attorney Fee and Costs Application is Timely any Time Prior to Final Judgment

In Carpenter v. Jack in the Box Corp., case no. B188707 (May 25, 2007) the Second District Court of Appeal holds that an application for anti-SLAPP attorney fees and costs under Code of Civil Procedure section 425.16(c) by a plaintiff who prevails against an anti-SLAPP motion is timely so long as it is made before entry of final judgment in the action, even if it s not made until after resolution of the appeal of the order denying the anti-SLAPP motion.

Carpenter brought an action for wrongful termination, defamation, and other tort and contract claims related to the termination of employment by Jack in the Box.  Jack in the Box brought an anti-SLAPP motion (special motion to strike) under Code of Civil Procedure section 425.16, claiming that plaintiff’s claims targeted Jack in the Box’s actions in the course of an investigation into allegations that plaintiff had sexually harassed another employee and that such actions were protected under the First Amendment.  The trial court denied the special motion to strike, and the Court of Appeal affirmed.

After remittitur to the trial court, plaintiff filed his application for fees and costs under section 425.16(c).  The court held that the trial court did not lose jurisdiction over the application simply because the remittitur of the case after the denial of the anti-SLAPP motion did not include instructions to determine attorney fees and costs.  The trial court retains jurisdiction to decide a motion for fees and costs even while the appeal is pending, and a statute authorizing an award of attorney fees in the trial court includes appellate fees unless the statute explicitly states otherwise.

Finding jurisdiction, the court next turned to the issue of whether the application was timely under rules 3.1702 and 8.104 of the California Rules of Court.  After a rigorous and complicated analysis of the rules to resolve a facial ambiguity, the court concludes that an application for fees under section 425.16(c) is timely so long as it is brought any time before final judgment in the action.

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Emotional Distress Damages for Statutory Habitability Action

In McNairy v. C. K. Realty, case no. B178918 (May 22, 2007), the Second District Court of Appeal holds that tenants may recover emotional distress damages in an action under Civil Code section 1942.4 against their landlord for breach of statutory habitability standards. Reasoning that the term “actual damages” in the statute (since amended, but still allowing for “actual damages”) has a plain meaning that includes emotional distress damages, the court rejects the landlord’s contention that emotional distress damages in such actions will lead to windfall recoveries. The statute requires severe and prolonged habitability problems, which naturally lead to inconvenience:

Generally, the residential tenant who has suffered a breach of the warranty does not lose money. He instead cannot bathe as frequently as he would like or at all if there is inadequate hot water; he must worry about rodents harassing his children or spreading disease if the premises are infested; or he must avoid certain rooms or worry about catching a cold if there is inadequate weather protection or heat. Thus discomfort and annoyance are the common injuries caused by each breach and hence the true nature of the general damages the tenant is claiming. (Quotation marks and citation omitted.)

The court notes other states had construed similar statutes to include emotional distress damages, and that other “actual damages” provisions in the California codes had been construed to include emotional distress damages. Finally, because the damages were awarded on a statutory cause of action rather than an action for breach of the lease contract, the award of emotional distress damages was not an impermissible award of tort damages in a contract action.

Settled Statements, New Trials, and the Languishing Criminal Defendant

When a reporter’s transcript of proceedings is unavailable for appeal, the appeal may proceed by way of a “settled statement.” California Rules of Court, rule 8.130(g). Some pitfalls of this procedure are revealed in People v. Cervantes, no. B183412 (May 16, 2007).

On Cervantes’s first appeal, the court reporter advised that a technical malfunction prevented her from transcribing the testimony of the sole prosecution witness. Nearly a year after his conviction, Cervantes moved for summary reversal and a retrial based on the absence of the transcript. The Court of Appeal denied the motion but remanded for the trial court to determine if a settled statement could be obtained.

At the hearing on the settled statement, held more than a year after conviction, the trial judge admitted having no recollection of the trial proceedings. The proffered settled statement was prepared almost entirely by the prosecutor with only nominal participation from appellate defense counsel, who had not participated at trial. Cervantes’ trial counsel had no input at all. He was deemed unavailable when appellate counsel told the court that he had left the public defender’s office. The trial court approved the settled statement.

It turned out that Cervantes’s trial counsel remained practicing in town after leaving the public defender’s office. The Court of Appeal, noting that Cervantes will be entitled to a new trial if a settled statement cannot be approved, remanded for a determination of whether a settled statement could now be prepared with the assistance of his newly located trial counsel.

Net result: More than two years after his conviction, Cervantes still doesn’t know if he will be appealing on the basis of a settled statement or will instead be entitled to a new trial.

Lessons for trial lawyers: The Court of Appeal will not grant new trials on the basis of unavailability of transcripts until efforts at procuring a settled statement are thoroughly exhausted. Determine the availability of your trial transcript immediately and keep track of persons important to the preparation of a settled statement — just in case. It turned out in this case that although Cervantes’s trial counsel had left the public defender’s office, he was still practicing locally — a little effort could have saved a lot of time.

As a side note, the unanimous opinion from our local division of the Second District Court of Appeal contains this gem of writing in the introduction:

“The trial judge has no recollection of the trial proceedings. Yet, he approves a settled statement. This is unsettling.”

That’s the kind of writing that keeps opinions from being boring, yet maintains the seriousness of the subject (unlike, in my view, this opinion). I wish I could write similar remarks. But such writing from an appellate justice is almost universally appreciated, while an attorney submitting a brief has to worry about insulting the seriousness of the court. If I really want to scratch that itch, I should work on getting appointed to the bench.

Thanks to The Electric Lawyer.

Helmetless Motorcyclist Equals Broken Taillight . . . Sort of

I remember my motorcycling days fondly, and riding without a helmet was one of the greatest sensations of physical freedom I ever felt. Right up there with skydiving — maybe better. But I also think I was crazy to ride without a helmet. (I still think the skydiving made perfect sense.)

Richard Quigley probably doesn’t think I was crazy.  He was cited nine times for riding his motorcycle without a helmet and contended that law enforcement officers were required to issue him “fix-it” tickets instead of regular citations because his lack of a helmet was an “infraction involving equipment” that required such treatment.  In Department of the California Highway Patrol v. Superior Court, case no. H029406 (May 17, 2007), the Sixth District Court of Appeal holds that riding without a helmet is indeed a “correctable” violation subject to a fix-it ticket, but also holds that the officers had discretion to cite Quigley in this case because of they could have reasonably concluded that Quigley’s helmetless operation of his motorcycle met the statutory exception of an “immediate safety hazard” — an immediate danger to Quigley, that is.

Which leaves open the possibility that an officer could decide to issue only a fix-it ticket if the rider agreed to leave his motorcycle parked until he could retrieve and put on a helmet.  In that case, there would be no immediate safety hazard.  The hazard passed when the rider stopped the bike.

Hypothetically, one might even run across an officer that doesn’t find helmetless riding to be such a safety hazard that more than a fix-it ticket is required.  But I suspect any officer that feels that way isn’t likely to pull over a helmetless rider in the first place. Mr. Quigley, I wish you good luck finding those officers.

I expect the legislature will move on this issue.

Election Contest Not Appropriate for Writ Review

In Nguyen v. Superior Court, case no. G038475 (May 14, 2007), the California Court of Appeal, Fourth District, holds that a losing candidate’s challenge to a ballot recount that reversed the results of a board of supervisors election “should be heard by the more deliberative and thorough process of appeal, rather than the hastier route of a petition of writ of mandate,” but leaves open the possibility of writ review in other election challenges.  In part, the court denies the writ because due deliberation and the procedural safeguards of appeal are especially important in a case that may result in the removal of an elected official that has already been sworn in to office.  But the court also evaluates the classic factors for determining the appropriateness of writ review (see Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266) — at least, those that it finds applicable to a petition brought after trial, when appeal is readily available.  Since the legislature had specifically provided for relief by way of appeal (Elections Code section 16900) and expedited that relief by giving election cases preference on appeal (Code of Civil Procedure section 44), , the court finds that the petitioner has an adequate remedy by way of appeal.  In the absence of any constitutional question, conflict in trial court decisions, or impending elections that might be affected by the statewide ramifications of an ultimate ruling, the court holds that writ review is inappropriate in this case.

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California Court Upholds Deadly Weapon Sentencing Enhancement for Animal Cruelty Conviction

Division Four of the Second District Court of Appeal has just upheld a deadly weapon sentencing enhancement under Penal Code section 12022(b)(1) for a conviction of animal cruelty under Penal Code section 597(a). The court rejected the defendant’s contention that a deadly weapon enhancement could only apply to crimes against humans. Animal cruelty under section 597(a) is a felony, and section 12022(b)(1) only requires that the deadly or dangerous weapon have been used “in the commission of a felony or attempted felony.” In this matter of statutory construction, the court stated that “If we were to follow appellant’s interpretation, we would be required to insert the words ‘against a person’ into the statute,” effectively re-writing the statute. People v. Smith, 2nd Dist. case no. B189383 (April 24, 2007).

California Anti-SLAPP Statute Does Not Protect Acts in Furtherance of Free Exercise of Religion

When defendants were sued by their neighbors for nuisance arising from smoke and ash entering the neighbors’ properties from fires defendants regularly lit as part of religious rituals in their backyard, they filed a motion to dismiss under the anti-SLAPP statute (Code of Civil Procedure section 425.16). The Court of Appeal affirmed the trial court’s denial of the motion, rejecting the defendant’s contention that section 425.16 was intended to protect acts associated with the free exercise of religion. Section 425.16 “did not import wholesale the protections of the First Amendment.” The statute mentions only two of the rights enumerated in the First Amendment — freedom of speech and the right to petition — and extending the statute to cover religious acts such as the ritual fires would run counter to the legislative intent. The California Supreme Court has issued seven anti-SLAPP decisions since the beginning of last year. Might this eventually be another? The case is Castillo v. Pacheco, 2nd Dist. Ct. of App. case no. B188991 (April 25, 2007).