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 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.

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.

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.

[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.

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.

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 . . .

The City initiated the action below by filing a petition for a workplace protective order (Code Civ. Proc. § 527.8) against Glair that would require him to keep his distance from City employee Mann.  The protective order issued after a bench trial.  Glair, acting in pro per, filed a “Motion for Judgment Notwithstanding the Verdict or in the Alternative for a New Trial” six months later, which was timely because no notice of entry of the restraining order had been served. The motion was denied, and a few months later Glair appealed from the order denying the motion.

The court evaluated jurisdiction on four different grounds, and found it wanting under all of them.

First, the City (!) urged the court to construe the notice of appeal as an appeal from the underlying judgment.  However, because the appeal was filed more than 180 days after the date of entry of the protective order, the court had no jurisdiction to entertain an appeal from the judgment even if it so construed the notice of appeal.

Second, the court considered the order denying the motion for judgment notwithstanding the verdict, but found the motion improper because the trial was to the judge instead of a jury.  (Hot tip: if there’s no “V,” a motion for JNOV is not the way to go.)  Thus, the court holds that it likewise lacks jurisdiction over the order denying the JNOV motion, but holds in the alternative that even if it has jurisdiction, “the only possible outcome would be summary affirmance of the denial of the motion for judgment notwithstanding the verdict on the ground the motion was not valid.”

Third, the court notes that the alternative basis for the motion (new trial) gets Glair nowhere because orders denying a motion for new trial are not appealable.  (An order denying  a new trial motion may be reviewed on appeal from the underlying judgment.)

Finally, the court liberally construes Glair’s JNOV motion as a statutory motion to vacate the judgment and enter a new judgment — even though such a construction was not urged by either party — and follows Clemmer by dismissing the appeal.  The court recognizes that Clemmer has not been followed in the courts of appeal, but says that it is “compelled to follow” it.  After explicitly inviting the Supreme Court to “provide further guidance and eliminate the apparent confusion in the intermediate appellate courts on this issue,” the court also finds support for the nonappealability of an order denying a statutory motion to vacate in Code of Civil Procedure section 904.1 and rule 8.108, California Rules of Court.  The former explicitly authorizes an appeal from an order granting a new trial and an order denying a JNOV motion but is silent on motions to vacate.  The latter identifies various post-trial motions and how their filing extends the time to appeal, but the only motion the rule explicitly contemplates appeal from is a JNOV motion.

Unless and until the Supreme Court clarifies the issue, trial counsel need to assume an order denying a Section 663 motion to vacate is not appealable, at least not in the Second District.  Thus, even where no notice of entry of judgment has been served, counsel should not delay on a motion to vacate.  Since a denial of the motion is not appealable, it is important to have the motion decided before the deadline for appeal from the judgment so trial counsel can still appeal from the judgment if the motion is denied.

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.

Technorati Tags: California Procedure, Federal Procedure, Ninth Circuit, Writ Review

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.

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.

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.

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.

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.

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.”

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.

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.

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.

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 jurisidction over the aplication 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.

Technorati Tags: California attorney fees, Anti-SLAPP

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.

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.

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.

Technorati Tags: California appellate practice, California writ practice, California election law