Affirming on appeal on an alternate ground – the rule as applied to section 473(b) motions for relief

Sometimes, the trial judge’s reasoning underlying a judgment is so obviously wrong that it seems to present a “slam dunk” appeal. But the rules of appellate review favor the judgment below, and that slam dunk (really, there is no such thing on appeal) can turn out to be a miss.

The appellants in Younessi v. Woolf, case no. G051034 (4th Dis. Feb. 16, 2016) learned this the hard way.  The appellants were defendants who successfully moved for an entry of dismissal after the plaintiff failed to file an amended complaint following an order sustaining demurrers with leave to amend. The plaintiff filed a motion under Code of Civil Procedure section 473(b) to set aside the dismissal, on grounds of excusable neglect and attorney fault. In granting the set-aside motion, the trial judge stated that she relied on section 473, subdivision (b)’s “discretionary” provision.

The appellants succeeded in convincing the court of appeal that the trial judge had abused her discretion in granting discretionary relief. The plaintiff offered no explanation for not seeking relief promptly and the attorney’s affidavit offered only “cryptic explanations” for his conduct, thus failing to establish that his neglect was excusable.

Appellants still lost, however, because the court affirmed on an alternate ground, which the trial court apparently never considered: the “attorney-fault provision” of section 473, subdivision (b), mandated setting aside the dismissal. The statutory mandate in section 473, subdivision (b) to set aside a default or dismissal upon a suitable affidavit from counsel reads as follows:

Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.

Long-time readers may recall I have warned against some pitfalls in this type of motion, and noted a significant split of authority regarding the applicability of this provision. But in this case, the plaintiff got it right. The motion was timely, the affidavit of fault was sufficient, and the trial court disposition was “the procedural equivalent of a default judgment” (though this was not obvious).

Appeals from orders granting section 473, subdivision (b) motions, in the abstract, will frequently present an opportunity for the appellate court to affirm on alternate grounds, since the statute itself provides for alternate grounds for relief from certain defaults and judgments. Be on the lookout for this whenever you are the respondent in such an appeal.

And never go into an appeal thinking you have a “slam dunk.”

SB 470 codifies Reid v. Google, Inc., provides that objections to summary judgment evidence are preserved for appeal

whichthat2On Monday, according to this article at The Recorder, Governor Brown signed SB 470, amending Code of Civil Procedure section 437c, which governs procedure for motions for summary judgment and summary adjudication. For appellate practitioners, the significance of the bill lies in its codification of Reid v. Google, Inc. (2010) 50 Cal.4th 512. Reid held that objections to evidence submitted in support of a motion for summary judgment are preserved for appeal even if the trial court fails to rule on the objections. Prior to Reid, the courts were split on whether such objections were preserved. I’m unaware of any lingering controversy over the issue since Reid, but it is nonetheless satisfying to see its holding codified.

Specifically, the bill adds the following language to the section 437c:

(q) In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.

Trial judges served with dozens of pages of objections are now explicitly excused from ruling on those that they deem immaterial. I think some judges have probably been doing this already with orders such as “Plaintiff’s objections 1-10 granted; all others denied,” especially in light of the holding in Reid, but it is good to see the burden explicitly lifted. Consider this excerpt from the first report on the bill from the Senate Judiciary Committee:

The report cites published opinions that illustrate the large number of objections made in summary judgment papers and the huge volume of motion papers in overall. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532 [“We recognize that it has become common practice for litigants to flood the trial courts with inconsequential written evidentiary objection, without focusing on those that are critical [footnote omitted].”]) The report specifically cites, as an example, the case of Nazir v. United Airlines, Inc. (2009) wherein “the moving papers in support of a summary judgment totaled 1,056 pages, plaintiff’s opposition was nearly three times as long and included 47 objections to evidence, and the defendant’s reply included 764 objections to evidence.” [Citation.]

If you are wondering about the graphic accompanying this post, here’s the explanation. It is in honor of the drafters of SB 470, for eliminating from section 437c three incorrect uses of the word “which.” Misuse of “that” and “which” (most commonly, the improper use of “which” in place of “that”) is a pet peeve of mine — not just in section 437c, but everywhere, including all other California codes, briefs, news media, correspondence and judicial decisions. Yet, I am sure I am guilty of it on occasion. Every once in a while, whether “which” or “that” is the correct word can be a close call, but SB 470 corrected some obvious mistakes. You can see the redline of the amended section 437c here.

Don’t treat one superior court judge as the reviewing court for another

Writs and appeals are sometimes not the only routes (or even the preferred routes) to relief from an adverse order or judgment. Motions for reconsideration, post-trial motions for new trial or to vacate the judgment, and motions to set aside a judgment all have the possibility of getting you a “reversal” of sorts without ever leaving the superior court.

I’ve written before about how a superior court judge may change a prior interim ruling on his own motion, even when the decision to do so is triggered by a faulty motion for reconsideration. The chief limitation on this practice is that, in most cases, one judge on a superior court cannot reverse the ruling of another judge on the same superior court, at least so long as the original judge is still available, i.e., still on that court. In Marriage of Oliverez, case no. H040955 (6th Dist., July 27, 2015), the court confirms that this rule applies even when the case has been transferred to a new judge for trial.

The original judge in Oliverez had denied husband’s motion pursuant to Code of Civil Procedure section 664.6 to enforce a settlement. The case was then transferred (for reasons the court was unable to discern from the record) to another judge, before whom it was tried. In his tentative ruling, the second judge stated his intent to reconsider the first judge’s ruling on the settlement enforcement motion and later gave formal notice of its intent and afforded the parties an opportunity to brief the issue. The second judge then issued a statement of decision and final judgment, in which he vacated the prior order denying the motion and entered a judgment of dissolution that incorporated the terms of the settlement. Wife appealed.

The Court of Appeal covers the “narrow” exceptions to the general rule that one trial court judge may not reconsider and overrule an interim ruling of another trial judge:

“[W]here the judge who made the initial ruling is unavailable to reconsider the motion, a different judge may entertain the reconsideration motion.” Another exception is when the facts have changed or when the judge has considered further evidence and law. Additionally, a second judge may reverse a prior ruling of another judge if the record shows that it was based on inadvertence, mistake, or fraud. Mere disagreement, as here, with the prior trial judge’s ruling, however, is not enough to overturn that ruling.
(Citations omitted.)

Since the first trial judge in Oliveras was still on the bench, and it was apparent from the second judge’s ruling that he merely disagreed with the first judge on the original evidence and law, the judgment vacating the prior ruling did not fall within the exceptions.

Perhaps the husband saw the writing on the wall. He did not file a respondent’s brief in the Court of Appeal.

So, do you want your superior court judge to reconsider an earlier ruling based on the same facts and law? Knock yourself out with the same judge, but don’t try to turn another superior court judge into a one-judge appellate court.

Judgment assignees better be careful

Last month’s decision in Cal-Western Business Services, Inc. v. Corning Capital Group, case no. B241714 (2d Dist., November 6, 2013) makes for some interesting reading and a cautionary tale for those who purchase assignments of judgments.

Corning Capital found itself on the losing end of a money judgment. The original judgment creditor assigned the judgment to Pacific West One Corp., who then assigned it to the unfortunate Cal-Western. Why unfortunate? Because Pacific West One’s corporate status was suspended at the time it gave the assignment and was never revived, and the trial court held that as a result, Cal-Western lacked capacity to enforce the judgment against Corning Capital. The Court of Appeal affirmed.

One could be forgiven for being confused by this statement of the court (my emphasis):

At the time Cal-Western filed the instant action on the Judgment four years later [after the assignment], Pacific West One’s corporate powers had not been revived and it remained a suspended corporation lacking capacity to file or maintain a suit. Therefore, because a defense based on lack of capacity to sue existed at the time of notice of the assignment and could have been asserted against Pacific West One had it brought the action itself, Cal-Western was subject to the same defense in suing to enforce the Judgment as Pacific West One’s assignee.

What is one to make of that? If the the notice of the assignment is the time when capacity is determined, then why mention that the assignor’s suspended corporate status had not been later revived? Later revival would be immaterial, unless the court is intimating that that the assignor’s revival prior to the notice of assignment would give the assignee standing that did not exist at the time of the actual assignment. Is the court doing so? That seems inconsistent with its citation to

the general rule that “`[t]he assignee “stands in the shoes” of the assignor, taking his rights and remedies, subject to any defenses which the obligor has against the assignor prior to notice of the assignment.'” (Johnson v. County of Fresno (2003) 111 Cal.App.4th 1087, 1096; see also Bliss v. California Co-op. Producers (1947) 30 Cal.2d 240, 250 [“an assignee of a chose in action is subject to all equities and defenses existing at or before the notice of the assignment“][.])

What about other scenarios? For example, if if a corporate assignor is in good standing at the time of the assignment but is suspended by the time notice of the assignment is given, does the assignee have standing?

Maybe there are cases definitively answering these questions.  But caution should be the watchword for those purchasing assignments of judgments. Any assignee who purchases a judgment from a corporate assignor better be careful about confirming that the assignor is a corporation in good standing at the time of the assignment and then serve notice of the assignment immediately, before that status can change. Some warranties and guarantees in the assignment agreement wouldn’t hurt, either.

They're capacitors, get it? Capacity, capacitor . . aw, forget it. That's what you get when your humble law blogger also majored in electrical engineering.

Uniform Trade Secret Act preemption error results in reversal — and some lessons on review of orders granting summary adjudication

public domain image from Wikimedia Commons

I have a feeling that the plaintiff’s attorney in Angelica Textile Services, Inc. v. Park, case no. D062405 (4th Dist., October 15, 2013), didn’t lament too much the loss of a jury trial on the plaintiff’s claim for trade secret misappropriation, even though on the surface, it looked like plaintiff’s last gasp following the dismissal of plaintiff’s other claims for breach of contract, unfair competition, breach of fiduciary duty, interference with business relations, and conversion, all of which related to conduct that involved the alleged trade secrets. After all, plaintiff had an ace up his appellate sleeve.

The merits

The claims were all related to the conduct of the plaintiff laundry service’s former executive who, while still employed by plaintiff, entered into contracts with customers that — against standard industry practice — allowed cancellation at any time. The executive also collaborated with third parties in planning a competing laundry business. He then resigned from plaintiff, went to work as the chief executive of the competitor, signed up customers who were able to cancel their contracts with the plaintiff, and hired 40 employees away from the plaintiff.

The defendants obtained summary adjudication of the contract and business tort claims on the ground the those claims were preempted by the Uniform Trade Secrets Act. At the jury trial on the remaining claim for trade secret misapprpriation, the jury found that the information at issue did not constitute a trade secret and rendered a verdict for the defenedants. On appeal from the final judgment, plaintiff did not challenge the jury’s verdict. Instead, they argued that the summary adjudication had been improperly granted. The Court of Appeals reversed.

The Court of Appeal held that the claims were not preempted by the UTSA because plaintiff’s theories of liability made it irrelevant whether the information constituted trade secrets or not. The contract claim depended on a provision in the executive’s employment contract that prohibited competition while employed. The conversion claim was based on the executive’s taking of company documents that comprised company property (and could not be dismissed ion the ground that the physical documents were valueless because that issue had not been litigated). The remaining torts were based on the executive’s breach of his duty of loyalty.

The appellate lessons

The defendants tried to stymie the appeal through several procedural arguments.

First, the appellate court rejected the contention that plaintiff was required to seek writ review of the summary adjudication order, pointing out that “there is no requirement in our summary judgment statute that parties who wish to challenge orders granting summary adjudication do so by way of a writ petition.” (Note, however, that there is some authority — apparently in the minority — that orders denying summary adjudication may only be reviewed by writ petition and cannot be challenged on appeal from the final judgment. (See Sierra Craft, Inc. v. Magnum Enterprises, Inc. (1998) 64 Cal.App.4th 1252.))

Second, the court rejected the contention that plaintiff forfeited review of the summary adjudication ruling by not moving for reconsideration. The business contracts lawyers and the defendants contended in their respondents’ brief that the trial court’s error of law could have been raised in a motion for reconsideration — an odd contention, seeing as how it did not rely on new facts or law. In any event, the appellate court conclusively states that “there is no requirement that a losing party move for reconsideration of an order granting summary adjudication” in order to preserve arguments for appeal that are already in the record.

Appellate lessons abound in case involving a creative but dubious argument on how a tentative ruling should affect appellate review

Last year, I wrote about a dubious but creative argument by a respondent that a party’s submission to a tentative ruling on a motion forfeited that party’s right to challenge the motion ruling on appeal. As you might remember, that went nowhere.

The latest creative (and dubious) use on appeal of a tentative ruling — again unsuccessful — comes in Meddock v. County of Yolo, case no. C070262 (3d Dist., filed Sept. 10, 2013, ordered published October 4, 2013). Meddock appealed from a summary judgment for the defendant. His argument on how the tentative ruling on the defendant’s summary judgment motion should play into the appellate court’s analysis, and the court’s rejection of that argument, appear in footnote 4 of the opinion:

Quoting the generality that “doubts” about summary judgment should be resolved against granting it (see, e.g., Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502 (Hamburg)) and noting that the tentative ruling was in his favor, Meddock asserts the trial court must have had doubts, and therefore summary judgment was improper. Meddock cites no authority to support this argument. To agree with his argument would defeat the purpose of tentative rulings, that is, to focus the parties on the dispositive issues before the court (see Younger, Cal. Motions (2011–2012) Tentative Rulings, § 4.53, p. 132) and would preclude us from exercising our independent review to determine whether triable issues of fact exist. (See Hamburg, supra, 116 Cal.App.4th at pp. 502–503.) Moreover, the theory on which the tentative ruling was based — that the pavement contributed to the accident — has been abandoned by Meddock, as we have explained ante.

To my mind, the court should have given more emphasis to the point that the appellant’s argument is inconsistent with the independent review of a summary judgment. It does make the point, noting that accepting the appellant’s argument “would preclude us from exercising our independent review to determine whether triable issues of fact exist” — another way of saying that the trial court’s doubts are irrelevant because the trial court’s exercise of discretion is not at issue in the independent review afforded a summary judgment — but it is a shame to see the point buried in the middle of the footnote. As correct as the other points in the footnote may be, they are just gravy.

The other appellate lessons in this case have nothing to do with the trial court’s tentative ruling, but it is unusual to see so many strung together in one case:

  1. Make it or waive it. Meddock had multiple arguments he could have made in opposition to summary judgment, but explicitly disclaimed several at the summary judgment hearing and made no attempt to argue them on appeal, so they were deemed abandoned.
  2. Watch what you concede on a summary judgment motion. Parties sometimes concede facts on summary judgment knowing that the concession will not bind them at trial. But why do so when the moving party fails to provide supporting evidence for them? Here, the decision notes that both sides made unsupported factual assertions, but the court accepted them as true since the parties agreed on them.
  3. Keep your standards of review straight. Appellant wasn’t the only party to advance an argument inconsistent with the standard of review. The respondent argued that evidentiary gaps in the record must be construed in its favor. This argument apparently relied on the general rule that an appellate court “must draw reasonable evidentiary inferences in favor of the judgment,” but that rule has no application in the independent review afforded a summary judgment.

Falling on your 473(b) sword only gets you so far

OK, it’s not actually FALLING, but you get the picture

Oddly enough, this point is made in a case where no one actually fell on their sword.

The title of this post comes from my nickname for the mandatory relief provision in  Code of Civil Procedure section 473, subdivision (b) (my emphasis):

Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.

I’ve always considered this a very scary provision, since it invites an attorney to admit he screwed up, and maybe even committed malpractice (hence my reference to this as the “fall on your sword provision”), in order get his client (and himself) out of a jam. The scary part is . . . what about those situations where an attorney admits fault, but does not get the “mandatory” relief?

The limitations of this provision are explored in yesterday’s decision in Las Vegas Land and Development Co., LLC v. Wilkie Way. LLC, case no. B238921 (2d Dist. Sept. 20, 2013). In that case, a plaintiff failed to file any opposition to a summary judgment motion and had summary judgment entered against it. The plaintiff moved under this mandatory relief provision to set aside the summary judgment, then appealed from the order denying relief.

The limits of falling on your sword – forget about relief from summary judgment

The court holds, consistent with other decisions and contrary to an outlier holding the other way, that the mandatory relief provision does not apply to summary judgments. This holding results from a pretty straightforward analysis of the statutory language limiting application of the provision to defaults and default judgments.

What happens when no one actually falls on their sword?

I’ve seen applications for mandatory relief denied when the court deemed the attorney’s affidavit of fault too unspecific to constitute the required admission (cases of medical malpractice in Boise Idaho Litster Frost). In this case, the plaintiff applicant took it one step farther, and sought relief without any affidavit of fault from an attorney, claiming that its counsel had abandoned it.

In light of the court’s holding that the mandatory relief provision does not apply, the resolution of this request makes no difference, but the court addressed it anyway. Again, it reached a conclusion on a very straightforward analysis. The statute has no exceptions to the affidavit requirement, so the party seeking relief was not excused from providing an affidavit of fault, notwithstanding its contention that it had been abandoned by its counsel.

In fact, plaintiff’s former counsel — the one representing plaintiff at the time plaintiff failed to respond to the summary judgment motion, and who had supposedly abandoned plaintiff — filed an affidavit opposing plaintiff’s request for relief from the judgment, saying that he had advised his client of the need to oppose the summary judgment and was told by the client that it had already engaged new counsel to do so. Not exactly the kind of affidavit plaintiff could have used from the guy, since it not only disavowed any fault but also established that the client had not been abandoned, undermining the factual basis for the claimed exception to the rule.

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

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

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

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

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

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

Don’t Forget, Appellants: The Record is Your Burden, Too

Everyone knows, or should know, that part of the appellant’s burden of demonstrating prejudicial error is to present a record that adequately demonstrates the error. If you’re arguing the court erred in granting summary judgment, you’d think it would be pretty obvious to include all the moving papers, including the moving party’s statement of undisputed material facts (Code Civ. Proc. § 437c, subd. (b)(1)). The appellant in Gunn v Mariners Church, Inc., case no. G038445 (4th Dist. Sept. 2, 2008, ordered published Sept. 30, 2008), failed to include the moving party’ separate statement, with potentially dire consequences, but catches a break from an accommodating court:

Critical to our review of any summary judgment is the moving party’s separate statement of undisputed facts. Gunn elected to proceed by way of an appellant’s appendix (Cal. Rules of Court, rule 8.124), in which he has included Mariners Church’s points and authorities and its attorney’s declaration to which various deposition pages and other pieces of documentary evidence, but not Mariners Church’s actual separate statement of undisputed facts. Gunn’s failure to provide a complete record arguably precludes him from meeting his appellate burden. [Citations.]

Gunn has, however, included his own separate statement in the appellant’s appendix, which appears to be in the form required by the court rules juxtaposing Mariners Church’s assertions of undisputed fact with Gunn’s responses thereto. (Cal. Rules of Court, rule 3.1350(d).) And Mariners Church does not suggest Gunn’s separate statement inaccurately represents its statement of undisputed facts. Accordingly, we will proceed on the merits based on Gunn’s separate statement and the evidence Mariners Church submitted.

I wonder how much of the court’s forgiveness was due to the fact that it affirmed anyway. I suspect most panels would be quite reluctant to reverse on a similar record.

The bottom line: don’t rely on the court’s largesse. Include a thorough record.

Peremptory Challenge to Judge After Remand Has Its Limits

Virtually every civil litigator knows about the procedure afforded by Code of Civil Procedure section 170.6 for disqualification of the judge assigned to the case.  Commonly called “papering the judge,” the requirements of the section are so meager that such challenges are also referred to as “peremptory” challenges, though not technically so (to my mind), and my guess is that any civil litigator who has practiced for more than a few years has invoked section 170.6 at least once.

Maybe you didn’t know that this disqualification procedure is available even after reversal on appeal.  Subdivision (a)(2) of section 170.6 provides

A motion under this paragraph may be made following reversal on appeal of a trial court’s decision, or following reversal on appeal of a trial court’s final judgment, if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter.  Notwithstanding paragraph (3), the party who filed the appeal that resulted in the reversal of a final judgment of a trial court may make a motion under this section regardless of whether that party or side has previously done so.  The motion shall be made within 60 days after the party or the party’s attorney has been notified of the assignment.

Since appellants frequently feel they were treated unfairly by the trial judge in the first instance, the ability to “paper the judge” after a reversal on appeal is a critically important consideration.  It may be the one thing that convinces an aggrieved party to appeal, when that party might otherwise have been resigned to accept an adverse judgment because the prospect of having to retry the case before the same judge the party thinks is an idiot is simply too daunting.

But you’ve got to be careful about when you count on it and when you don’t, as the real parties in interest learned in C.C. v. Superior Court, case no. G040580 (4th Dist. Sept. 11, 2008), a juvenile dependency proceeding in which, after succeeding on appeal by obtaining a reversal of a reunification order, real parties successfully “papered the judge.”  Petitioner filed a petition for writ of mandate “for relief from the order accepting a peremptory challenge,” and the court of appeal granted the petition.

The language allowing a peremptory challenge on remand was added in 1985 to avoid perceived bias against an appellant of a trial judge whose judgment or order had been reversed on appeal.  (Stegs Investments v. Superior Court (1991) 233 Cal.App.3d 572, 575-576.)  But the statute applies only where the remand requires “a ‘reexamination’ of a factual or legal issue that was in controversy in the prior proceeding.”  (Geddes v. Superior Court (2005) 126 Cal.App.4th 417, 424.)  It does not apply to the performance of a ministerial act.  (Stegs Investments v. Superior Courtsupra, 233 Cal.App.3d at p. 576.)

The problem for real parties, however, is that the remand order required the trial court to perform only ministerial acts.  Those were: (1) to enter a new order denying reunification services and (2) setting a permanent plan selection hearing.  The court rejected the real parties’ argument that the subsequent hearing would require a reexamination of the same issues considered in the reunification hearing.

The real parties in interest claim, “the juvenile court in the present case will undoubtedly revisit the core determinations upon which this Court based its reversal,” meaning it will have to consider the strength of the bond between the children and the mother at the permanent plan selection hearing.  This claim is true, but the consideration of the parent-child bond at the permanent plan selection hearing is not for purposes of reunification; rather, it is to determine whether to avoid the termination of parental rights and select a different permanent plan.  (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).)  This consideration will take place in a different legal context from the disposition hearing and will involve facts as they then exist.  On remand, however, the juvenile court was merely directed to enter an order denying reunification services and to set a permanent plan selection hearing.  The implementation of these directions will not constitute a reexamination of an issue of fact or a retrial of the dispositional issues.

Thus, “[b]ecause the matter was not remanded for a reexamination of an issue of fact or a retrial of the dispositional issues, we grant the petition and direct that the case be returned to [the challenged judge].”

The same considerations should not apply in the typical civil trial, where past facts are what are at issue.  But any time that future consideration of an issue will depend on facts as they then exist, “papering the judge” is apparently not an option after remand.

An Important Discovery Ruling Overcomes a Deferential Standard of Review

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

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

First, the backdrop of the case:

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

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

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

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

(Footnotes omitted.)

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

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

“A Sadistic Urge to Torment Lawyers”


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I always assume that all of the rules of procedure will be strictly construed against me, and that opposing counsel will be allowed to get away with murder. To me, it’s the smart way to practice: dot your I’s and cross your T’s.

In Whitehead v. Habig, case no. G037991 (4th Dist. May 28, 2008, ordered published June 5, 2008), the appellants had appealed a summary adjudication and default judgment on the remaining claims. In opposing the summary adjudication motion, the appellants never filed their own separate statement of undisputed and disputed material facts (Code Civ. Proc., § 437c, subd. (b)(3); Cal. Rules of Court, rule 3.1350(e)); they merely filed objections to the moving parties’ separate statement of material facts.  In noting that the objections did not satisfy the requirement for a separate statement, the court had a gem of a quote:

The separate statement is not merely a technical requirement, it is an indispensible part of the summary judgment or adjudication process. “Separate statements are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to expeditiously review complex motions for . . . summary judgment to determine quickly and efficiently whether material facts are disputed.” [Citation.]

The appellants’ failure to comply with the separate statement requirement in opposition is reason enough for the trial court to grant the summary adjudication motion.

A Judgment that Nobody Noticed Sinks an Appeal

How can the parties and the court all miss the fact that the court entered a judgment?  Well, when the document that operates as such isn’t labeled “judgment,” I guess one can occasionally slip by . . . to the appellant’s great misfortune in Melbostad v. Fisher, case no. A119514 (July 23, 2008, ordered published Aug. 4, 2008), in which the court of appeal dismisses the appellant’s challenge to a fee award as untimely.

In Melbostad, the trial court granted defendant’s special motion to strike under California’s anti-SLAPP statute (Code of Civil Procedure section 425.16) and entered an order dismissing the complaint “with prejudice.” It subsequently granted a motion for fees brought by one of the defendants, then entered a judgment that “recapitulated” the previous orders granting the special motion to strike and granting the motion for attorney fees.

Appellant challenged the fee award by appealing from this second “judgment” rather than from the order granting the fee motion.  Which is what brought the timeliness of the notice of appeal into play.  His notice of appeal was untimely as measured from the order granting the fee motion, but timely as measured from the final “judgment.”  Appellant conceded that his time to appeal the order granting the special motion to strike ran from the original order granting that motion (see Code Civ. Proc. sec. 904.1, subd. (a)(13)), but contended that his time to appeal the fee award ran from entry of the subsequent judgment.  Even the respondent agreed.

Not so.  The court finds that because the order dismissing the complaint disposed of all the substantive claims between the parties, it was an appealable judgment under Code of Civil Procedure section 904.1, subdivision (a)(1), and thus the fee award was a separately appealable order after judgment pursuant to section 904.1, subdivision (a)(2).  The subsequent judgment “appears to have served no purpose here, and appellant’s appeal from it does not save his otherwise untimely appeal.”

There was some clever, but unavailing argument from the appellant, and the decision goes into some depth on why the order granting the section 425.16 motion is a “judgment.”  In reading the case, you’ll also discover important differences in appealability based on whether the plaintiff or defendant prevails on the section 425.16 motion.

Flexibility on Appellate Jurisdiction

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

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

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

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

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

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

Why Did the Supreme Court Punt on a Jurisdictional Issue?

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

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

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

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

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

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

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

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

Keep Appealing Orders Denying Post-Conviction Motions on Jurisdictional Grounds

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

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

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

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

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

Appeal That Fee Award

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

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

Who Knows Why Some Parties Appeal?

Sometimes a decision just makes no sense, at least to someone looking at it from the outside. Such is the case with Profit Concepts Management, Inc. v. Griffith, case no. G039077 (4th Dist. May 5, 2008).

Oh, the merits make sense. California-based Profit Concepts sued former employee Griffith in California under an employment agreement that contained an attorney fee provision. But Griffith lived in Oklahoma and successfully moved to quash service for lack of personal jurisdiction. The trial court awarded Griffith contractual attorney fees as the prevailing party.

Reasonable enough. The court rejects Profit Concept’s argument that because the lawsuit, which it had resumed in Oklahoma, left contract issues pending resolution, Griffith could not be considered the prevailing party under Civil Code section 1717. Griffith clearly prevailed on the claims in California, and that is all the award was concerned with.

The part that’s hard to understand is the reasoning employed by Profit Concepts in pursuing the appeal, both legally and practically.

Legally, it’s hard to understand why Profit Concepts cited case authority interpreting an older version of Civil Code section 1717 that had changed in a very material respect. Specifically, while the former statute defined a “prevailing party” in terms of obtaining a final judgment, the current version defines prevailing party as, among others, a party that obtains a dismissal. That’s a pretty clear and relevant distinction.

The practical part is just as hard, if not harder, to understand. The attorney fees awarded were barely $3400. What made this appeal practical?

The Limits of Wende

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

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

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

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

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

The Ninth Asks the California Supremes for Help

Kimberly Kralowec reports at The Appellate Practitioner:

Within the past seven days, the Ninth Circuit has issued two orders asking the California Supreme Court to rule on controlling legal questions pursuant to California Rule of Court 8.548[.]


Such orders are relatively rare, so it is rather unusual to see two issued within five days of each other. There is no overlap on the panels.

Unusual, indeed.

Professor Martin says the request in one of the cases is particularly polite and respectful.  I’m sure the Ninth is hoping for a better response than they got last October!

Appellate Surprises

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

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

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

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

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

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

Producer’s Lawsuit Crashes

Did you ever wonder while watching the Academy Awards presentation on TV just who gets to go up on stage and receive an award as a “producer” when a film wins for best picture?  Wonder no more.  The procedure for identifying producers entitled to share in the award is succinctly explained in Yari v. Producers Guild of America, Inc., case no. B196817 (2d Dist. Mar. 25, 2008)., in which Yari runs up against the limitations on judicial review of a private organization’s decision-making processes.

Yari contended he should have received an award as a producer for the 2004 best film award winner Crash.  The selection process involves both the Guild and the Academy of Motion Picture Arts & Sciences.  The Academy generally relies on the designations made by the Guild, which are made after receiving applications from everyone who received screen credit as a producer.  The Guild did not designate Yari, and his appeals through the Guild and Academy proved fruitless.

Yari’s claim for “wrongful denial of the right of fair procedure” attempted to invoke the doctrine allowing judicial review of a private organization’s decision-making processes, but the court of appeal holds that the trial court properly sustained the demurrer as to this count.  Though Yari alleged that the Guild and Academy had great influence in the movie industry, his allegations fell short of establishing that they perform a “gatekeeping” function in the sense that they can prevent him from working in the industry or that the organizations affect the public interest in the same sense that a dental association does when it disciplines a member dentist.

This case is a nice summary of the law regarding when a private organization’s decision-making processes are — and are not — subject to judicial review.

Order or Judgment? It can make a big difference!

More wrangling over what triggers a deadline to appeal.

Several weeks ago, I reported on Adaimy v. Ruhl, case no. B193745 (2d Dist. Feb. 28, 2008), in which the court of appeal held that serving just one of multiple attorneys representing a party with a notice of entry of an order denying a motion for new trial suffices to trigger the deadline to appeal.  In this order modifying the opinion without change in the judgment and denying rehearing, the court tacks two paragraphs on to its original opinion that lead me to the question posed in the title of this post.

Though the original opinion refers to an August 7, 2006 “notice of entry of the order” denying the appellant’s new trial motion, the modified opinion refers to a document of the same date titled “Ruling on Submitted Matter,” apparently the same document.  The generic reference has some significance in the context of the new argument that the court quickly disposes of.

Appellant claimed that the “Ruling on Submitted Matter” was not a notice of entry of order within the meaning of rule 8.108(b)(1)(A), California Rules of Court (extending the time to appeal to 30 days after notice of entry of order denying new trial) because it was not titled “Notice of Entry of Order” and was not file-stamped with the date of entry.

The court notes, however, that the words “Notice of Entry of Order” appear at page 6 of the document.  That’s enough.  But is that necessary?  Rule 8.108(b)(1)(A) triggers the deadline for appealing from the service of “an order denying the motion or a notice of entry of that order.”  It’s hard to say exactly what this document was comprised of, but I’m guessing that the “Ruling on Submitted Matter” was not the order itself, but a document with the order attached. If it were simply the order itself, it seems the court could have found it sufficient to trigger the appeal deadline regardless of the presence of the words “notice of entry.”

As for the missing file stamp, the court notes that while a file-stamp must appear on any copy of the judgment served in lieu of a notice of entry of judgment (rule 8.104(a)(1)), there is no such requirement under rule 8.108 for notice of entry or a copy of the order denying a new trial.

Is Summary Judgment Unconstitutional?

That’s surely a heretical thought to many. And not one that would have popped into my head had reader Joe Norman not commented on my post regarding new trial motions following summary judgment by sending a link to an article by University of Cincinnati College of Law professor Suja Thomas entitled “Why Summary Judgment is Unconstitutional.” Before you laugh off that idea, you ought to read the abstract at that link. An excerpt:

While other scholars question the use of summary judgment in certain types of cases (for example, civil rights cases), all scholars and judges assume away a critical question: whether summary judgment is constitutional. The conventional wisdom is that the Supreme Court settled the issue a century ago in Fidelity & Deposit Co. v. United States. But a review of that case reveals that the conventional wisdom is wrong: the constitutionality of summary judgment has never been resolved by the Supreme Court. This Essay is the first to examine the question and takes the seemingly heretical position that summary judgment is unconstitutional. The question is governed by the Seventh Amendment which provides that “[i]n Suits at common law, . . . the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

Odds are slim that I can read the article any time soon, so if anyone reads it, I’d sure be interested in your comments, which I encourage you to leave on this post.

An Odd Request

Not from me.  From the plaintiff homeowners association in Pacific Hills Homeowners Assn. v. Prun, case no. G038244 (4th Dist. Mar. 20, 2008).

The plaintiff association prevailed at trial, getting an injunction requiring the defendant to comply with covenants, conditions and restrictions and architectural guidelines by modifying a structure on their property.  So far so good, but the judgment also required the homeowners association to pay two-thirds of the cost, so long as certain conditions were met. So when the defendant appealed, the association cross-appealed, arguing that the court was wrong to make it responsible for costs in moving the gate.

The association then asserted — apparently in its briefs, since the court does not mention a motion — that its appeal was moot because the defendant had not timely met the conditions triggering the association’s obligation to pay. In light of this contention, the association apparently asked the court of appeal to rule that the association no longer had an obligation to pay because the time for satisfying the conditions had passed.  The reasons the court gives for declining to do so should have been anticipated by the association:

Plaintiff asserts that its appeal “is apparently moot” because defendants did not timely elect to move the gate back at least 20 feet from the property line, and asks for a “clarification of the effect of the passage of [the] time lines” set out in the judgment. We decline to do so. There is nothing in the record to show what occurred after judgment was entered with respect to the gate. Nor do we give advisory opinions. [Citation.]

A Dilemma for Some Defendants Who Seek to Arbitrate

It’s a long-held rule in California that a defendant sued on a contract may recover attorney fees pursuant to a provision in the contract even if the defendant prevails on a theory that he was not a party to the contract or that the contract is nonexistent, inapplicable, invalid or unenforceable. The rule exists in order to further the purpose of Civil Code section 1717, which is to make unilateral fee provisions reciprocal. If a defendant could not recover fees after successfully defending on these grounds, then the ability to recover fees would be limited to a prevailing plaintiff, which would frustrate the the public policy of mutuality underlying the statute.

Consider now whether a similar rule should apply to arbitration provisions. Public policy in favor of arbitration appears evident in the scheme for compelling arbitration (Code Civ. Proc., §§ 1281 ff.) and in the fact that the legislature made an order denying a petition to compel arbitration appealable. (Code Civ. Proc., §1294, subd. (a).) Should a defendant be able to compel arbitration pursuant to a contractual arbitration provision in a contract alleged by plaintiff even if the defendant denies the existence of that contract?

The court of appeal says “no” in Brodke v. Alphatec Spine Inc., case no G038591 (4th Dist. Mar. 20, 2008). The defendants refused to affirmatively allege the existence of an agreement to arbitrate, pointing instead only to the fact that plaintiffs alleged the existence of four contracts and that defendants would admit to them only for purposes of the arbitration petition. Not enough, says the court.

Both the plain language of the statute and the function of an arbitration petition compel the response, says the court. Code of Civil Procedure section 1282.1 requires the party petitioning to compel arbitration to allege “the existence of a written agreement to arbitrate a controversy.” The court also notes that a petition to compel arbitration is the functional equivalent of a suit in equity to compel specific performance, thus requiring affirmative allegations.

The defendants cited case law allowing a party to petition to compel arbitration while at the same time denying the validity of the agreement containing an arbitration, but the court notes that a party contesting validity does not contest the actual existence of the agreement.

The defendant also contended that being forced to acknowledge the existence of the contract would deprive it of applicable defenses. Here’s the defendant’s contention and the court’s response:

Defendants next protest that if they “concede the existence and validity of the contracts for all purposes in order to compel arbitration” they will be forced to “relinquish[] potentially valid defenses.” Their argument is unavailing. Defendants do not identify the defenses they would “relinquish” if they are forced to litigate this dispute in court. All defenses remain available to them, including their claim that the contracts do not exist.

I think the court has this mixed up. The dilemma faced by defendants in this situation is that by admitting to the existence of the contract, the admission works as a judicial estoppel that precludes them from contesting the existence of the contracts during arbitration. The court’s response does not address this. Instead, it says that the defendants do not lose the right to assert any defenses in court.

To my mind, the court did not adequately address the defendants’ dilemma — which I think is a legitimate concern.

I suppose it’s possible that given the flexibility afforded to an arbitrator, a defendant who successfully petitions to compel arbitration could try to convince the arbitrator that the admission in the petition should not estop the defendant from denying of the existence of the contract. But that is largesse from the arbitrator I would rather not have to count on.

New Trial Motions after Summary Judgment

Can you move for a new trial when your case was disposed of by summary judgment?  This question undoubtedly causes some degree of cognitive dissonance in many lawyers: a new trial when there was no trial?

But the answer is “yes.”

A reminder comes in the form of Doe v. United Airlines, case no. B192865 (2d Dist. Mar. 20, 2008).  After United successfully moved for summary judgment, Doe moved for a new trial on the ground of “newly discovered evidence” that purportedly raised a triable issue of fact precluding summary judgment.

Not that it ultimately did her any good.  The court of appeal holds that the trial court abused its discretion in granting the new trial motion and affirms on plaintiff’s protective cross-appeal from the grant of summary judgment.

There are lots of post-trial and appellate tidbits in this case.  Nothing new, just well-established principles for which the case provides a reminder.  I’ll probably be putting up separate posts on them (or consolidate them into a new post) in the next few days.

Another Private AG Fees Case Headed for the Supremes?

Well, we just had one Supreme Court opinion on the private attorney general statute (about which I posted here), and at first, I suspected that the Third District Court of Appeal was trying to tee up another one for potential Supreme Court review in Marine Forests Society v. California Coastal Commission, case no. C052872 (3d Dist. Mar. 4, 2008). To my mind, its public policy implications are significant.

At issue is the scope of the “catalyst” theory for recovering attorney fees under California’s “private attorney general” statute, Code of Civil Procedure section 1021.5. The catalyst rule provides that a party can recover fees under the statute even if it is not the prevailing party “if the lawsuit was the ‘catalyst’ that caused ‘the defendant [to] change[] its behavior substantially because of, and in the manner sought by, the litigation.’ (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 560 . . . .)”

Does that rule allow a plaintiff to recover fees if its lawsuit is the catalyst for change in how the public entity defendant operates if the change is mandated by the legislature in response to the suit, rather than instigated internally by the public entity? The Court of Appeal says no. Reading the catalyst rule of Graham literally, it holds that the change must be implemented unilaterally by the defendant, rather than be imposed on the defendant by a third party like the legislature, to bring the change within the catalyst theory. Thus, the fact that the legislature changed the law in response to a Supreme Court ruling in an earlier appeal from the case does not support fee recovery under the catalyst theory.

It was this statement in the opinion’s introduction that made me think the court of appeal was trying to set the case up for Supreme Court review::

To the extent it can be said that the rationale of the catalyst theory should apply to a lawsuit like this, which was the moving force resulting in a change in statutory law that conferred a significant benefit on the general public regarding important rights affecting the public, the argument must be made to the California Supreme Court because we are bound by the ruling in Graham, supra, 34 Cal.4th at p. 560. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

But there were other obstacles to a fee recovery in this case. The court of appeal found first that the plaintiff had not achieved the primary relief it sought. That is the first condition of a “catalyst” – based fee recovery, and plaintiff’s failure to meet it should have been enough to deny fees. The impetus for the changed behavior was merely an additional reason to deny fees.

By the way, Tom Caso at The Opening Brief has had a number of interesting posts on section 1021.5 in the last few months.

Notice to One of Multiple Attorneys Suffices to Trigger Deadline to Appeal

It’s not that uncommon to see a party represented in a lawsuit by more than one law office. That party often requests service of documents be made on all of its attorneys.

Notwithstanding such a request, the court of appeal holds in Adaimy v. Ruhl, case no. B193745 (2d Dist. Feb. 28, 2008) that the mailing of notice of entry of judgment to just one of multiple firms representing a party triggers the deadline for that party to file its notice of appeal.

Adaimy claimed the notice of entry of the order denying his new trial motion was ineffective, thus giving him 180 days from the date of entry of judgment to file his notice of appeal (rather than the shorter period of 30 days from notice of entry). (Cal. Rules of Court, rule 8.108(a).) The court finds, however, that as long as one of Adaimy’s attorneys received notice, it was effective notice and due process was satisfied. Adaimy thus had only 30 days to file his notice of appeal. Since he filed it on the 31st day, his appeal is dismissed for lack of jurisdiction.

A costly lesson in the jurisdictional nature of the notice of appeal.

Expert Witness Fees May Not Be Awarded Under Private Attorney General Statute

In a decision being closely watched by many, the California Supreme Court holds today in Olson v. Automobile Club of Southern California, case no. S143999 (Feb. 28, 2008), that Code of Civil Procedure section 1021.5, the state’s “private attorney general” statute, does not authorize a court to award expert witness fees in addition to the attorney fees explicitly authorized by the statute.

As the court notes, the statute explicitly authorizes an award of “attorney fees” and is silent about expert witness fees. Which should have made for an easy decision.

Yet the court is compelled to delve behind the plain language of the statute. The decision is a good primer on how to read behind the lines of a statute by examining its enactment and amendments relative to existing case law.  That doesn’t work to change the plain meaning in this case, though.

There is sure to be more posted by other bloggers. I’ll provide links as I find them.