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.

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.

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 “papered the judge.”  Petitioner filed a petition for writ of mandate, and the court of appeal grants 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 Court, supra, 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.

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

First, the backdrop of the case:

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

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

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

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

(Footnotes omitted.)

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

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

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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.

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 meadured from the order granting the fee motion, but timely as measured from the final “judgment.”  Apellant 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.

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.

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.

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.

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.

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?

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.

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!

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.

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.

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.

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.

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.]

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 amit 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.

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.

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.

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.

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.

This is merely an extension of the similar holding in Trope v. Katz (1995) 11 Cal.4th 274, which held that a self-represented attorney could not recover fees under a contractual fee provision. The Taheri court makes clear that an attorney-client relationship is necessary before fees may be recovered.

The identical issue of anti-SLAPP attorney fees was treated in much greater detail, and with the same result, in a 2004 decision by the same district (but different division) of the Court of Appeal. That decision was depublished when the Supreme Court granted review on a different issue. But you can find the case in the California Reporter (at least on Westlaw), and I recommend doing so if you are interested in a more detailed rationale than the Taheri opinion provides. Soukup v. Stock (2004) 15 Cal.Rptr.3d 303.

It would be a mistake to extrapolate from Taheri and Trope that fees are not recoverable in every situation in which they are not actually “incurred.” Regular readers will remember that when it comes to attorney fees, “incurred” doesn’t always mean “become obligated to pay” for. Courts have awarded fees in pro bono cases under fee shifting statutes, and will probably do the same someday under a contractual fee provision. As Taheri notes, the touchstone for recovery is an attorney-client relationship.

The court found that Corona should be commended, rather than threatened, for seeking additional therapy, at least absent the state’s ability to identify a “nefarious reason” that he did so. Requiring waiver of the privilege would be an unreasonable parole condition.

Nor is waiver needed to prevent Corona from unknowingly posing a threat to others, the court reasons, because the psychotherapist is already obligated to disclose such a threat under Tarasoff v. Regents of the University of California.

Code of Civil Procedure section 683.170, subdivision (a) provides in part that “[t]he renewal of a judgment pursuant to this article may be vacated on any ground that would be a defense to an action on the judgment.” Simpson contended that because lack of personal jurisdiction could be raised in an action on the judgment, he could raise it in his motion to vacate. However, a successful jurisdictional defense in any action on the judgment would have to attack jurisdiction to enter the original judgment. The court notes that “it is an entirely different matter to contend that the renewed judgment must be vacated because the debtor has insufficient personal contacts with the state to confer personal jurisdiction at the time of the renewal.” (Emphasis in original.)

The court finds no independent jurisdictional requirement for renewal. Code of Civil Procedure section 410.50, subdivision (b) provides that once subject matter and personal jurisdiction have been established, this jurisdiction “continues throughout subsequent proceedings in the action.” The court logically holds that renewal of a judgment under Code of Civil Procedure section 683.120 is a “subsequent proceeding” for purposes of section 410.05o, for at least two reasons: (1) the renewed judgment exists only as a derivative of the original judgment, and (2) renewal under section 683.120 is a purely ministerial act that merely extends the life of the original judgment.

It’s a suit brought by the Fund against a calf rancher, alleging violation of Penal Code section 597t for confining animals without an “adequate exercise area.”  Plaintiffs also include consumers who allege violation of the unfair competition statutes.  The consumers “reasonably presumed” that dairy products they purchased were produced from animals kept in compliance with the law and alleged that they lost money by purchasing dairy products that were illegally produced. 

The trial court sustained the demurrer without leave to amend.  The Court of Appeal affirms.

On the Fund’s cause of action for violation of the penal code, the court determines that the legislature did not intend a private right of action by private parties. The comprehensive legislative scheme for the incorporation of humane societies for the prevention of cruelty for animals effectively “deputizes” those societies “to aid local authorities in the enforcement of anticruelty laws,” indicating that there was no legislative intent to create a private right of action by enacting Penal Code section 597t.

The consumers’ claim fails because they fail to allege injury.  They failed to allege any misrepresentations, that the dairy products they purchased originated with the defendant, or that the products were inferior in any way.  Their complaint merely alleged that they were deprived of the “benefit of the bargain” — not enough for standing.  They argued on appeal that the products were morally tainted by the treatment of the calves that later joined dairy herds.  That might have been enough prior to 2004, the court notes, but the amended UCL requires that a private plaintiff have suffered “injury in fact and [have] lost money or property.”  (Bus. & Prof. Code, § 17204.)  Economic harm is required; moral taint doesn’t suffice.

The answer is, “it depends.” That’s because the issue isn’t so much whether the statute requires exhaustion — it doesn’t — but because the findings have collateral estoppel effect. If the findings are not enough to bar a civil claim, then the plaintiff can proceed despite not petitioning for mandamus. But if the administrative findings preclude the civil claim, the whistleblower needs to challenge adverse findings successfully to preclude their collateral estoppel effect:

If, as plaintiff would like, the statute and the amended regulation were divorced from a complicated body of case law on the binding effect of administrative findings in subsequent litigation, we could accept the plain reading of the statute, bolstered by the regulation, and conclude a whistleblower need not be encumbered by the administrative findings of the SPB in his civil action under the Whistleblower Act. We are not, however, at liberty to pretend the thorny problems posed by collateral estoppel do not exist. As a result, even if we were to accord great weight to the SPB’s construction of [Government Code] section 8547.8’s administrative exhaustion requirement, we conclude that the plain language of the statute simply does not resolve the more difficult dilemma posed by collateral estoppel.

The court affords collateral estoppel effect to the executive officer’s findings — and thus finds the civil claim barred –  even though the findings were based solely on documentary evidence and argument and the whistleblower’s request for a full evidentiary hearing was denied:

Thus, it appears the investigation became a contested proceeding based on opposing evidentiary submissions. The executive officer served as a neutral adjudicator and was required to and did consider the parties’ documentary evidence as well as arguments. “[S]o long as the agency is required by law to accept and consider evidence from interested parties before making its decision,” the proceedings, even if entirely documentary, satisfy the hearing requirement of Code of Civil Procedure section 1094.5. [Citations.]

Since, as we have concluded, the SPB’s decision was made as the result of a proceeding in which evidence was required to be given and considered by the executive officer, its validity can be challenged by a petition for a writ of mandate. Here, plaintiff chose not to challenge the adverse findings by way of a petition for a writ. As a result, those findings cannot be relitigated in a whistleblower civil action and respondent court erred by overruling PERS’s demurrer.

This decision initially struck me as fundamentally unfair. No one could complain of collateral estoppel effect for findings made after a full evidentiary hearing. But in this case, the whistleblower’s request for an evidentiary hearing had been denied and the findings were based exclusively on documentary submissions. Even the court, in light of inherent flaws it notes in the administrative procedure, seems to regret that it must issue this decision :

Without exempting whistleblowers from pursuing the administrative proceedings it requires them to commence, we must apply traditional principles of collateral estoppel, and despite the distinct infirmities present in the administrative proceedings, we conclude that any adverse findings rendered by the SPB have a preclusive effect in subsequent civil litigation unless challenged by a writ of administrative mandamus.

Until now, the answer has generally been “no.” That’s a rule that has always rankled me because securing a ruling can be out of the objecting party’s hands. No matter how much prodding one does, the court may fail to rule.

Tom Caso at the Opening Brief pointed out this likelihood last October, when he covered a series of decisions creating a conflict on this issue in the courts of appeal.  CalBizLit posted on Friday that trial court practice as to how a court purports to rule on the objections has been “all over the map.”

It will be good to get this issue settled.  The parties have only so much control over the state of the record sometimes. (Just ask the Oakland Raiders, for an example in another context.)

In Zevnik, the petitioners were lawyers sued for malpractice and breach of fiduciary duty arising out of a conflict of interest in representing multiple clients in prior litigation. Petitioners sought preclusive effect for the trial court’s findings on a disqualification motion in the prior litigation, in which the trial court had denied the disqualification motion both on the merits and on the ground of laches. The disqualification ruling had been reviewed by the Court of Appeal and affirmed, but only on laches grounds without reaching the alternate ground of the merits. Thus, the issue in Zevnik is whether collateral estoppel extends to the trial court’s findings on both the merits and laches or only to laches, the ground affirmed by the Court of Appeal. Or, as stated more generically by the court:

The issue presented here is the preclusive effect of a trial court decision based on alternative grounds, each of which was sufficient to support the decision, after an appellate court has affirmed the decision on only one of the alternative grounds without deciding the other grounds.

Addressing this issue, the court first recognizes that recent California Court of Appeal decisions extending collateral estoppel effect only to those grounds relied on by the reviewing court followed a federal case that based its holding on the “final decision” requirement for collateral estoppel effect. That is, since the trial court’s decision was appealed, it was not “final” for collateral estoppel purposes. Only the reviewing court’s judgment is final, and thus only the grounds stated in the appellate opinion should have preclusive effect.

Citing the importance of appellate review “in ensuring the reliability of a determination,” the court finds that when an appellate court does not review a particular ground for a decision, that ground is “not enhanced and is left in the same condition as if there had been no opportunity for review.” This strikes me as an odd justification, especially since the court explicitly recognizes that the principal reason a reviewing court declines to review alternative grounds for affirmance is judicial economy.

Indeed, it is interference with this judicial economy that the court fears from a contrary rule (emphasis mine):

Moreover, to accord collateral estoppel effect to alternative grounds relied on by the trial court after the appellate court affirmed on another ground and declined to review the alternative grounds would put pressure on appellate courts to review alternative grounds as a matter of course, in order to avoid the unintended consequence of establishing collateral estoppel on grounds that the appellate court did not review. This would dramatically increase the burden on appellate courts. Any benefit that might result from precluding the relitigation of issues in potential collateral litigation, which may or may not arise, would come at the cost of increasing the burden on the appellate court in the initial action. If an appellate court is aware of or anticipates collateral litigation and believes that to establish collateral estoppel on an alternative ground would be beneficial, the court may affirm the trial court judgment on more than one ground.

I think the court was wise to layout this groundwork in the emphasized portion of this excerpt. It takes care of the initial objection I had when I read the holding: I thought that the holding might encourage more appeals by losing parties who, even if they knew they would lose on appeal, might appeal in the hope of limiting the scope of the trial court decision’s collateral estoppel effect in anticipated collateral litigation. The court’s recommendation in the emphasized language alleviates this possible effect.

Advocates for respondents who anticipate collateral litigation and want the trial court ruling to have the fullest possible collateral estoppel effect should cite this passage of Zevnik and urge the Court of Appeal to consider all alternate grounds for affirmance.

The California Supreme Court held, in Le Francois v. Goel (2005) 35 Cal.4th 1094 (Le Francois), that even when Code of Civil Procedure section 1008 (section 1008) precludes a party from moving for reconsideration, a trial court has inherent authority to correct an erroneous ruling on its own motion. In this marital dissolution case, the trial judge denied a post-judgment motion filed by the wife. She promptly filed a motion for reconsideration. The trial judge determined that the motion did not in fact meet the requirements of section 1008, but also that his earlier ruling had been erroneous.  Accordingly, the judge reversed himself, and granted the relief sought by the wife.

We conclude that the trial court’s inherent authority to correct its errors applies even when the trial court was prompted to reconsider its prior ruling by a motion filed in violation of section 1008. Because that is what occurred in the present case, we affirm the trial court’s order.

As Professor Martin points out with one of his patented — and well worth reading — “translations,” this holding is likely to trigger more motions for reconsideration that the filing parties know lack any statutory basis, at least until the trial courts regularly sanction such conduct.  I think many lawyers may see sanctions as a very justifiable risk to get a second crack at a dispositive motion.

This decision reminds me how much I dislike the rules for reconsideration motions, which must be based on new law or facts (neither of which could have been reasonably discovered earlier), yet must be filed within a ridiculously short time frame of 10 days from the date of service of the notice of entry of the order on which the moving party seeks reconsideration.

I think what the court did here is effectively convert the reconsideration motion into a petition for rehearing.  The trial court did not consider the “new” evidence submitted with the rehearing petition, but was prompted to revisit its earlier ruling and reread the original evidence.  (At least, this was the Court of Appeal’s characterization — I think it is somewhat fanciful to believe that the court did not actually consider the new evidence, even though it did not mention it in the order reversing its previous ruling.)

So that got me to thinking: would rehearing petitions in trial courts be a good idea?  (Maybe not for appellate lawyers — more on that below.)  A statutory motion for rehearing on grounds similar to those allowed in the Courts of Appeal seems attractive in the abstract.  That is, if the trial court relied on facts different than those supported by the papers, made a mistake of law, and maybe even if it based its decision on an unbriefed issue, why not allow the losing party to point out that error if the correct facts or analysis should lead to a different result?

I know that such rehearing petitions would probably greatly outnumber motions made under the present reconsideration statute, resulting in a bigger workload for the trial courts.  But that increase could be mitigated if the scheme kept the filing deadline short and allowed for summary denial of a rehearing petition (i.e., without a written opinion setting forth reasons).  And if the success rate of trial court rehearing petitions mirrored the extremely low success rate of rehearing petitions in the Court of Appeal, I suspect you would see the filing rate level out well below the filing rate during the likely initial surge.

It might even cut down on the rate of appeals. (Agh! The horror!)  If parties believe that issues already twice considered in the trial court are less susceptible to reversal, they may be less inclined to challenge them on appeal.  Geez, forget I said any of this!

Of course, I’ve given this about two minutes of thought (one of the dangers of timely blogging).  Maybe the idea is insane.  If you can think of any major drawbacks, pipe up in the comments.  I’m definitely open to persuasion.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

Oglesby fought his court-appointed attorney every step of the way.  He asked for, and was denied, new counsel, then accepted a plea deal offered by the People, in which his lawyer refused to join.  In fact, his lawyer insisted that Oglesby was not competent.  He reminded the court that the second psychiatric report had found him incompetent and that Oglesby’s stipulation to use only the psychiatrist report finding him competent was “a tactical decision at the time . . . because we felt that . . . Oglesby needed to proceed back to trial.”  The court declined to reconsider competence and imposed sentence per the plea agreement.

Oglesby appealed in People v. Oglesby, case no. G037796 (4th Dist. Jan. 7, 2008), claiming that the trial court erred by failing to reevaluate his competence before imposing sentence.  The state argued that the issue was barred on appeal under Penal Code section 1237.5, which requires an appellant to obtain a certificate of probable cause when appealing “from a judgment of conviction” after a guilty plea, because the trial court refused to issue the certificate.

The court neatly sums up the competing arguments and its conclusion at the outset of its discussion:

The People assert Oglesby’s failure to obtain a certificate of probable cause bars this issue on appeal. They assert any challenge to a stipulated sentence implicates the validity of the plea and requires a certificate. Oglesby contends he is not challenging the sentence, but rather the sentencing procedure. He argues the court should have suspended sentencing to inquire into his competence, but did not. We conclude this is a distinction that makes a difference. No certificate was required.

The key for the court is that the appeal raises a post-plea question over whether the court should have held a new competence hearing before sentencing and he was not appealing the conviction or sentence itself.

The court dismisses the appeal because the “petition for appeal” stated that the issue on appeal was whether a traffic officer had “probable cause” to stop the defendant, and the appellant’s brief argued the same point, when the correct legal standard for the stop is the less rigorous “reasonable and articulable suspicion of criminal activity.”  In fact, not only did the appellant brief the wrong standard, but so did the commonwealth, and the court only raised the issue sua sponte after argument!

I think most panels in any California Court of Appeal faced with this situation – the wrong standard argued in the appellate briefs –  would note the error and order supplemental briefing from the parties on the correct legal standard.  Consider how generous the Courts of Appeal in California are, for example, in construing a notice of appeal from a non-appealable order as a notice from an appealable order or from the ensuing judgment (which I blogged about here) or even construing the appeal as a petition for a writ of mandate (which I blogged about here).

Obviously, I’m not familiar with Virginia procedure, and at first I was almost as cynical about the decision as S. COTUS – it looked like the court had converted a rule of procedure into a jurisdictional requirement. 

But there appears to be more than meets the eye here.  The “petition for review” referenced by the court is required by Virginia Supreme Court Rule 5:12 (also referenced by the court) and appears to function more as a writ petition than a notice of appeal, as it must be filed only where an appeal “does not lie as a matter of right.”  Not only must it contain “the questions presented,” but Rule 5:12 also states that “Only questions presented in the petition for appeal will be noticed by the Court of Appeals.”

Even so, having apparently agreed to hear the appeal, the Virginia court’s action in dismissing the appeal sua sponte and after oral argument seems especially strict.  Of course, a genuine lack of jurisdiction may be raised at any time.  But because the court referenced not just the appellant’s incorrect standard in the petition for appeal but also in the briefing, it seems unlikely that the defect in the petition for review has been considered jurisdictional before, else the court could have rested on that defect without referencing the subsequent briefing. 

Whether based on jurisdiction or a mere question of procedure, this is certainly a more harsh result than I would expect if the parties briefed the wrong standard in a California appeal.

The California Courts website now has up-to-date versions (i.e., the versions effective as of January 1, 2008) of the following posted:

Judicial Council Forms. This is a nice list, as it is only of the forms that have changes or been added, and the page includes a link to download all of the changed and new forms in a single zip file with one click. This list includes two forms for appeals, APP-003 — Appellant’s Notice Designating Record on Appeal (Unlimited Civil Case) and APP-008 — Certificate of Interested Entities or Persons. The latter is a brand new form valid statewide, a nice change from the district-specific forms in use up to this time. There are LOTS of changes to probate, family, and juvenile law forms. If you want forms already formatted to allow you to fill in the blanks, however, you’ll have to navigate to the form you want through the home page for forms.

California Rules of Court. This link is to the updated rules in toto, not just a list of changes.

Superior Court Local Rules. You’ll want to bookmark this page, which provides links to the local rules of every superior court with local rules available on-line (which, even in 2008, still does not include every county!), listed alphabetically by county.

The Judicial Council is also seeking comment, due by January 25, 2008, on a wide variety of topics, including proposed rules and legislation regarding discovery of electronic information (PDF download).

UPDATE (1/4/08):   The Appellate Practitioner notes one of the rules changes is that the Supreme Court copies of briefs filed in the Court of Appeal may now be served by e-mail.  That’ll save a little postage!

The oil companies, who prevailed in the Court of Appeal, sought to have the Court of Appeal opinion republished.  Wednesday, the three non-recused Supremes and one designated Court of Appeal Justice voted 4-0 to deny republication.  Those justices that had recused themselves from review likewise recused themselves from the republication decision.

I remain baffled by Chief Justice George’s rationale for the dismissal.  According to the Daily Journal article I cited in my previous post, he claims that a decision by a panel composed primarily of designated justices fron the Court of Appeal would not carry the same precedential value as a case decided by the Supremes themelves.  Though Supreme Court cases have been decided in the past by panels composed entirely of designated justices from the Court of Appeal, the Daily Journal article noted that Chief Justice George distinguished those earlier occasions as being based on “necessity” rather than conflicts of interest.

I am not sure I agree with the decision not to republish the case.  If the issue was so important that it warranted review, why not have precedent out there?  Perhaps the Supremes were unwilling to return to the state of affairs prior to the grant of review because the original grant was not tainted by conflicts.  (According to this article at Cal Law, apparently there was no conflict until Chevron, in which three of the justices own stock, merged with defendant Unocal a few months after review was granted.) 

Cal Law’s Legal Pad blog provides an update.

But I never read about that actually happening until the decision in Hossain v. Hossain, case no. 196198 (2d Dist. Nov. 30, 2007). Plaintiff’s opposition to a motion to enforce a settlement agreement and his cross-motion to enforce it on different terms were both untimely, and the trial court refused to consider them because of their untimeliness. Plaintiff filed a section 473(b) motion for relief from the order enforcing settlement and appealed from the order denying relief.

The court notes a split of authority regarding the orders to which the mandatory relief provision of section 473(b) applies. Section 473(b) provides for mandatory relief from a “default entered by the clerk against his or her client, and which will result in entry of a default judgment,” or “default judgment or dismissal” provided that the default or default judgment or dismissal results from the attorney’s “mistake, inadvertence, surprise, or neglect,” the attorney so admits in an affidavit, and application is made within six months. The split concerns interpretation of “default.”

Plaintiff cited several cases holding that mandatory relief applies to situations that are the “procedural equivalent of a default.” Those cases found mandatory relief from failure to appear for trial, failure to appear for arbitration, and failure to oppose a summary judgment motion.

But the Second District Court of Appeal adopts the position of English v. IKON Business Solutions,
Inc. (2001) 94 Cal.App.4th 130, which, after examining the legislative history of the provision, held that mandatory relief applied only to defaults explicitly described in the statute, i.e., a default “entered by the clerk against his or her client, and which will result in entry of a default judgment.” Thus, it affirms the order denying relief.

I don’t know if this issue arises often enough to make this split of authority important enough for the Supreme Court to grant review. But it is certainly a significant split, not just for parties, but also for attorneys, who admit fault in the course of seeking relief. A scary proposition for those attorneys who are unsure of whether mandatory relief applies, even if the mistake, inadvertence, surprise or neglect was arguably excusable.

As a side note, the court only certified for publication the introductory paragraph, a section of its discussion, and the disposition. It did not certify the “Factual and Procedural Summary.” Oversight?

The case came up on appeal from a summary judgment granted on the ground that the plaintiff’s administrative complaint was untimely. The timeliness of the administrative complaint turned on whether the Department of Fair Employment and Housing caused plaintiff to miss his filing deadline for filing a verified administrative complaint (thus equitably tolling the limitations period) rather than whether there was a triable issue on the substantive allegations of his complaint against his employer. (Thus, the Court of Appeal deemed the substantive allegations of the complaint “largely irrelevant,” so we needn’t discuss them here.) The court found that equitable tolling applied, the summary judgment on timeliness grounds was error, and remanded to the trial court to consider the remaining issues

The most interesting aspect of the case (at least for this jurisdiction geek) is how the court addressed the plaintiff’s contention that the court commissioner lacked jurisdiction to decide the motion. After evaluating the competing evidence over whether plaintiff had consented to the commissioner and the legal positions of the parties, the court says that it is “immaterial” which side is right on the jurisdictional question.

Wow. The existence of jurisdiction is, in the eyes of this panel and in this particular case, immaterial. I think this is wrong, wrong, wrong.

The court deems the trial court’s jurisdiction immaterial because it figures that if it remands, the case will just come up on appeal again on the exact same papers, so remanding would waste judicial resources:

Even if we were to concur that the judge pro tem lacked jurisdiction to hear the motion, there would not be any purpose in reversing the judgment and remanding the matter, only to exercise de novo review of the same materials on appeal from a ruling of a judge of the trial court (as our remittitur would not authorize reopening the motion), if we believe the outcome would be the same on the substantive timeliness issue. This only wastes scarce judicial resources and causes needless expense to the parties. We therefore proceed to the matter of whether the plaintiff’s failure to file a timely administrative complaint is excusable.

I don’t think I’ve ever seen the potential lack of jurisdiction treated so casually. If jurisdiction is lacking, the grant of summary judgment is void. So the court of appeal is analyzing the merits of a potentially void judgment. That is a big deal, and hardly consistent with the court of appeal’s usually zealous protection of its jurisdiction.

I think the court should have been more diligent in determining whether there was jurisdiction. Had it determined a lack of jurisdiction by the commissioner, it should have reversed and remanded without an examination on the merits. The reasons the court offers for the immateriality of jurisdiction don’t stand up well to scrutiny.

First, the court’s position that it would be reviewing “the same materials” on a subsequent appeal seems misguided. It rests on an anticipated remittitur that “would not authorize reopening the motion.” While it might be appropriate to preclude new declarations in support or opposition to the summary judgment motion, there seems no reason to restrict the scope of review by the new trial judge on legal issues. Suppose the new judge hearing the motion sees a legal point that the commissioner missed and wants to ask for additional briefing on an issue? Would the remittitur also preclude that?

A second problem with the “same materials” rationale is that even if the summary judgment papers are unchanged, a second appeal would afford the parties an opportunity to revise their appellate briefs. One of the briefs might be substantially more persuasive, cite additional authority, or otherwise differ from the briefs on this appeal, potentially leading the court of appeal to a different result.

Even more obviously, it is uncertain whether the Court of Appeal would ever see the case again. Suppose the superior court judge on remand disagreed with the commissioner’s disposition and denied the motion. The defendant would have to file a petition for writ of mandamus (which has a 90% + chance of not being heard on the merits) or await final judgment before appealing on the ground that the motion was improperly denied. The case would have a decent chance of settling with a trial on the horizon, so the court of appeal might not see the case again.

All of these possibilities argue against what the Court of Appeal did here.

The dismissal apparently arises out of conflicts of interest. According to the article, four of the seven justices had recused themselves from these five consolidated toxic tort cases because they owned stock in at least one of the oil company defendants.

The Supreme Court’s actual order is not posted as a final disposition on the court’s website, nor does it appear to be available on Westlaw. But here’s how the docket web page for the case describes it, which may or may not be verbatim from the order:

Review in the above-captioned matter is dismissed in light of circumstances, arising since review was granted, that require a majority of the permanent members of the court to recuse themselves. (See Cal. Code of Judicial Ethics, Canon 3.E(4)(c), (5)(d); Cal. Rules of Court, rule 8.528(b).) Kennard, Baxter, Chin, and Corrigan, JJ., were recused and did not participate. Hon. William R. McGuiness, Administrative Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. Votes: George, C.J., Werdegar, Moreno, and McGuiness, JJ.

The article is devoted in large part to the unusual reasons for the dismissal. It quotes Santa Clara University law professor Gerald Uelman’s astonishment at the reasons for the dismissal, as well as Chief Justice George’s defense of it on the ground that a decision on the merits by appointed justices would not carry the same weight as a decision of the regular court members. The latter strikes me as an odd position to take in light of the fact that, as the article points out, the court has appointed 7-member panels in the past. The article claims that has happened in cases in which the entire court was “conflicted,” but writes that Chief Justice George distinguishes those prior occasions because “the new panels [on those prior occasions] were created out of necessity and not conflicts of interest.” (That is Ms. Ernde’s characterization of Chief Justice George’s position, not a quote attributed to him.)

The article quotes several of the attorneys involved in the case, none of whom saw the dismissal coming. My favorite quote is from Horvitz & Levy attorney David M. Axelrad, representing Exxon, who is quoted as saying, “Some people say that appellate litigation is not exciting. Well, that’s not actually true.”

The article also discusses the nature of the issue on the merits. The online case summary page for the case describes the issue this way:

Does Evidence Code section 801, subdivision (b), permit a trial court to review the evidence an expert relied upon in reaching his or her conclusions in order to determine whether that evidence provides a reasonable basis for the expert’s opinion?

A pretty good summary of the implications of the question appears here, at the website of environmental law firm Barg Coffin Lewis & Trapp LLP.

Ms. Ernde’s article is behind the subscription wall at the Daily Journal, so if you are not a subscriber, you’ll need to get your hands on a physical copy of the November 5 edition. Thanks to Laura Ernde for alerting me to this.

UPDATE (11/8/07): Cal Bz Lit has a post on the merits of the evidentiary issue in the case. The post includes a link to his original post on the case (which includes a nice history on the development of expert witness “gatekeeping” authority of California judges).

UPDATE ( 12/14/07): The Supreme Court – part of it, anyway — has denied a request to republish the Court of Appeal opinion.

If you’re interested in how the discussion items were actually debated at the meeting, the Council has made audio files of the meeting available, broken down by discussion item, here.

For the position that the “catch-all” limitations period of Code of Civil Procedure section 343 applies, Northrup relied on a 116-year-old California Supreme Court case. Not usually a good sign. And despite prevailing in the trial court, Northrup loses on appeal. The court adopts Guimaraes’s position that the intervening enactment of the Uniform Foreign Money-Judgments Recognition Act (Code Civ. Proc., §§ 1713-1713.8) results in a 10-year limitations period because section 1713.3 makes foreign judgments “enforceable in the same manner as the judgment of a sister state which is entitled to full faith and credit,” and such sister state judgments are subject to a 10-year limitations period. (Code Civ. Proc., § 337.5, subd. 3.)

A third position was advocated in an amicus brief from a law firm that frequently represents clients seeking to enforce foreign money judgments in California courts. That firm contended that a foreign judgment may be enforced so long as it is enforceable in the country where it was rendered. The Court of Appeal did not reach that contention.

The court notes that significant questions regarding foreign judgment enforcement that it need not consider are under consideration in a case under review by the California Supreme Court. (Manco Contracting Co. v. Bezdikian, review granted Aug. 22, 2007, S154076.) According to the case summary page at the Supreme Court’s website,though, Manco appears to pose the exact question at issue in this case: the statute of limitations applicable to the enforcement of foreign money judgments. If that apparent equivalence of issues is real, then Guimaraes is an excellent candidate for “grant and hold” review by the Supreme Court, whereby the Supreme Court can grant review but hold the case until it decides Manco.

Penal Code Section 804, subdivision (d) provides that a felony prosecution is “commenced” when “[a]n arrest warrant or bench warrant is issued, provided the warrant names or describes the defendant with the same degree of particularity required for an indictment, information, or complaint.” (Emphasis added.)  The DNA profile in this case satisfies the state and federal constitutional requirements that the warrant describe the person to be seized with particularity. Indeed, notes the court, DNA identification is about the only means of identification not subject to alteration, making it most likely to name a unique individual. (The most favorable odds Robinson had for a second person matching the profile were were 1 in 650 quadrillion – that’s 1 in 650,000,000,000,000,000.)

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

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

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

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

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

In the second, Gonzalez v. Munoz, case no. B197860 (2d Dist. Oct. 24, 2007), the issue arises under the Domestic Violence Protection Act, and the Court of Appeal gives greater insight into its decision (footnotes omitted) to decide a moot case:

As this court observed just last year, “It is rare for a Court of Appeal to get a peek into the world of domestic violence proceedings, because these protective orders are nearly never appealed. We know something about these proceedings, not so much from he appellate brief and oral arguments, but because of judicial administration studies and nnovations over the past few years.” (Ross v. Figueroa (2006) 139 Cal.App.4th 856, 861 (Ross).) These sources, coupled with the facts of this case itself, convince us of the potential importance of the ruling below for a significant portion of the state’s population, many of whom, as we noted in Ross and as was true here, are unrepresented n DVPA proceedings. (Id. at p. 861 & fn. 3 [estimated 90 percent of litigants in domestic violence restraining order cases appear pro se].) As we further observed, the high percentage of self-represented litigants (many of whom, again as here, do not speak English) places a special burden on bench officers who “cannot rely on the propria persona litigants to know each of the procedural steps, to raise objections, to ask all the elevant questions of witnesses, and to otherwise protect their due process rights.” (Id. at p. 861.)

Here, the appellant challenged the trial court’s refual to extend, after a noticed hearing, the original ex parte order of restraint and custody. The Court of Appeal finds that the trial court did not even consider relevant factors. Given the magnitude of the error, it is likely that the court decided the case despite mootness in large part because the appellant and amici curaie contended that the trial court’s handling of the proceedings “represents a common misunderstanding by bench officers handling DVPA proceedings in the Los Angeles Superior Court.”

Since section 388, subdivision (b) permits sibling status to be proven by blood, adoption, or “affinity through a common legal or biological parent,” Miguel’s and Jose’s common biological mother suffices to establish they are siblings in the first instance. An order terminating parental rights affects only the relationship between the parent and child; their relationships to other biological relatives remains unaffected. A finding to the contrary would violate strong public policy in support of maintaining sibling relationships.

The fact that Miguel and Jose had no preexisting relationship when their mother’s rights to Jose were terminated — because Miguel had not even been born yet — doesn’t alter these considerations. Their biological relation remains.

The appellate procedure angle: It’s all moot. Because Jose had been adopted, the juvenile court lacked jurisdiction to order visitation with him. But the court decides to answer the question anyway because the case “raises important issues that are capable of repetition but likely to evade review,” and affirms even though it finds the trial court erred.

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

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

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

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

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

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

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

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

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

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

The court notes that statutes of limitation and the statute requiring a plaintiff to bring a case to trial within 5 years serve similar purposes, and that plaintiffs here had a right to bring their wrongful death claim in a separate action, in which case the 5-year period would have run from the date of the new filing.  Plaintiffs should not be penalized merely for the form of their claim, i.e., for amending the original complaint rather than bringing a new action.

Applying the relation back doctrine, the court finds that the wrongful death claim does not relate back to the decedent’s original claims for asbestos injury.  The wrongful death claim rests on a different injury from the original claims, personal to the survivors.

If you conclude that at times the defendant was legally sane and other times the defendant was insane, you must assume that he was legally sane when he committed the crime.

Because virtually every mentally ill person has lucid moments, contended the defendant, this language in the instruction essentially directs a finding of sanity.

According to defendant, the instruction “require[d] [the] jury to find [him] sane even though he might have been insane at the time of the crime if at any other time he was sane.”

The court disagrees and affirms, but not before dispatching a nonsensical argument from the state.

The People counter that the italicized portion of the instruction is legally accurate and informs the jury that if there were times when defendant was legally sane and other times when he was legally insane, “it is assumed that he was legally sane when he committed the crimes.” According to the People, this is because “defendant will not have met the burden of demonstrating it is more likely than not he was legally insane when he committed the crime.”

We fail to follow the People’s logic. If the evidence shows that, in the past, there were times when defendant was sane and other times when he was insane, this does not necessarily mean defendant failed to prove he was insane at the time of the offenses. If defendant’s history contains periods of sanity and periods of insanity, defendant will nevertheless have met his burden if he proves the offenses were committed during one of the periods of insanity.

Getting back to the defendant’s contention, the Court of Appeal finds the allegedly faulty language misleading only if considered in isolation. In the context of the entire instruction, however, it finds the danger of misleading the jury negligible:

As indicated, the thrust of CALCRIM No. 3450 is to inform the jury that the burden is on the defendant to prove he was insane at the time of the offenses. This is consistent with Penal Code section 25, subdivision (b). The instruction states that if the jury determines the defendant had a mental disease or defect at any time before he committed the offenses, the jury may conclude that same condition existed at the time of the offenses. It concludes by stating that, if the jury decides the defendant proved it is more likely than not he was insane at the time of the offenses, the jury must return a verdict of not guilty by reason of insanity. Thus, even if the jury was directed to “assume” the defendant was sane, this assumption is subject to defendant presenting evidence to prove otherwise. An assumption of sanity, like an assumption of innocence, is just another way of saying the burden is on the party claiming otherwise to prove it.

I am troubled by the court’s conclusion because I agree with something it says earlier in the opinion:

[N]o good can come from informing the jury that, once evidence has been presented that the defendant was sane at times and insane at other times, it must assume he was sane at the time of the offenses. This assumption existed before evidence was presented. Thus, there is the risk the jury might read the highlighted portion to mean the assumption is irrebuttable.

“No good can come from” the challenged language. In other words, anything that does come from it is not good, and thus presumably prejudicial. There is a downside to the language but no upside. Why keep it?

UPDATE (10/26/07): It appears that Professor Martin at California Appellate Report agrees.

I always thought it should be, and now I have the decision in Zurich American Ins. Co. v. Superior Court (Watts Industries, Inc.), case no. B194793 (2d Dist. Oct. 11, 2007) to back me up.

The court holds that the trial court construed the attorney-client privilege too narrowly by exempting from discovery only those documents that “contain actual copies of letters or e-mail communications from outside counsel, or documents that have been created by counsel, or received by counsel, or that contain direct communications from counsel.” Evidence Code section 952 defines confidential communications between lawyer and client much more broadly. Under section 952:

[C]onfidential communications include information transmitted to persons “to whom disclosure is reasonably necessary for the transmission of the information,” and those to whom disclosure is reasonably necessary for “the accomplishment of the purpose for which the lawyer is consulted.” Section 952 expressly includes legal opinions and advice given by a lawyer within the definition of confidential communication.

Since corporations are unquestionably “persons” who can invoke the privilege, and can only communicate through living individuals:

It follows that in order to implement the advice of lawyers, the advice must be communicated to others within the corporation. It is neither practical nor efficient to require that every corporate employee charged with implementing legal advice given by counsel for the corporation must directly meet with counsel or see verbatim excerpts of the legal advice given. But that is what the approach adopted by the referee and trial court would require in light of the narrow construction of section 952 they adopted.

But before your company gets too crazy telling everybody everything, realize there are limits: “The privilege only protects disclosure of communications, it does not protect disclosure of the underlying facts by those who communicated with the attorney.”

Documents are privileged if they (1) contain legal advice or a discussion of legal advice or strategy and (2) were not disclosed within the corporation to anyone but those identified in section 952, i.e.,

those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.

First, the facts.  Two wheelchair-bound plaintiffs — Gunther and Rountree — filed separate lawsuits against Booker for violations of the Unruh Act relating to inaccessibility of Booker’s restaurant to persons in wheelchairs.  Both were represented by the same lawyer.  However, Rountree did not file his case until Booker had already settled with Gunther.  Booker cross-claimed for abuse of process, alleging that Rountree deliberately delayed filing suit until after Booker settled with Gunther in order to obtain a second settlement for the same violations.  The trial court denied Rountree’s anti-SLAPP motion under Code of Civil Procedure section 425.16, and the Court of Appeal affirms.

The cross-claim meets the first prong of the anti-SLAPP test for dismissal because the cross claim arises from the underlying litigation. However, Booker succeeded at demonstrating a probability of success on the merits.

The evidence produced is sufficient to permit inferences that Rountree knew of the Gunther suit but deliberately delayed in order to avoid consolidation of the suits and to enhance recovery through multiple settlements. Rountree’s declaration that he had no knowledge of the Gunther suit until after he filed his own is not necessarily the version of events that will prevail at trial. Further, the litigation privilege of Civil Code section 47 is no obstacle because the alleged conduct is not a communicative act and therefore is not included within the privilege.

CORRECTION (10/9/07): Thanks to commenter Richard, who points out that Rountree had actually filed his case while Gunther’s was still pending and that the delay was in not serving the summons until after Gunther settled.

The County appealed from an order for genetic testing to determine paternity pursuant to Family Code section 7575.  While the appeal was pending, the County filed “a petition for a writ of mandate, prohibition, or other appropriate relief and requested an immediate stay of the trial court proceedings.”  The court of appeal treated the petition as one for supersedeas, and granted relief (i.e., stayed enforcement of the trial court order pending appeal).

After the appeal was fully briefed (apparently), respondent moved to dismiss the appeal on the ground that the genetic testing order was not appealable.  The court of appeal declined to decide the appealability of the order, opting instead to exercise its discretion to treat the appeal as a petition for writ of mandamus:

We do not reach this issue [of appealability] because we exercise our discretion to treat the appeal as a petition for a writ of mandate, in the interests of justice and judicial economy.  [Citation.]  The merits of the issue have been fully briefed by the parties, and this is a case in which the failure to consider the issue at this juncture would be a dereliction of our duties as a reviewing court.  We deny the motion to dismiss the appeal as moot.

The Opening Brief’s Tom Caso poses some logical questions in light of these procedural irregularities:

This raises an interesting question with regard to conversion of the first writ into a writ of supersedeas.  As noted above, the purpose of that writ is to preserve the court’s appellate jurisdiction (Cal Rule of Court 8.112; CCP § 923).  If the court was going to treat the matter as a petition for writ of mandate in the end, was it necessary to convert the first writ into a writ of supersedeas?  Does this give the real party grounds to argue that the court acted in excess of its jurisdiction in granting that writ and the immediate stay?

I suspect that the real party in interest (the respondent, before the court of appeal decided to treat the appeal as a writ petition) wouldn’t get very far with this “excess of jurisdiction” argument.  A party may seek an immediate stay pending the outcome of a writ petition.  Assuming the supersedeas writ somehow dissolves with the conversion of the appeal to a writ petition, that “conversion” apparently did not take place until the court filed its opinion ordering the issuance of the writ of mandamus.  Any stay, valid or not, became moot at that point.

But suppose the court of appeal had issued an order on the motion to dismiss stating that it was denying the motion as moot because it was treating the appeal as a petition for writ of mandamus, then did not decide the petition for several more weeks.  In that situation, the respondent/real party might have a case that the supersedeas writ issued earlier was no longer in effect.

However, I doubt this technical point would avail the respondent/real party.  It seems unlikely that a trial court would treat the writ of supersedeas as having lapsed without an order from the court of appeal.  In addition, I think it highly unlikely the court of appeal would have left that issue unresolved.  Upon issuing its order denying the motion to dismiss as moot and treating the appeal as a writ petition, it most likely would have construed the first writ petition and the converted appeal together as a petition for writ of mandamus with a request for immediate stay and issued an order granting the stay.

The reason I suspect this is that the court of appeal usually goes out of its way to save appeals and its jurisdiction, and will jump through hoops to construe procedure the way that best resolves the case.  If memory serves, in the case I blogged about here, for example, the court stretched to construe the order appealed from as several alternate orders in a vain effort to find appellate jurisdiction.

Technorati Tags: saving appeals, writs

The Supreme Court decides unanimously that the limitations period is not tolled as to the former firm.  Though there are competing policy considerations, the legislative history of section 340.6 indicates that the legislature intended that attorneys are entitled to repose after a certain time.  Tolling would submit the former firm to potential liability for an undetermined time beyond its control.

Initially, I read this the same way as Professor Martin at California Appellate Report, who says “Here’s a win for lawyers today.”  But its important to remember that it’s only a win for the former firm.  The departing lawyer who continues to represent the client may be left “holding the bag” alone.

UPDATE (9/28/07): As far as whether this is a “win” for lawyers, its telling to see that amicus briefs were filed on behalf of Arter & Hadden (the former firm) by the Los Angeles County Bar Association,  the Association of Southern California Defense Counsel, and a host of “Big Law” firms: Bingham McCutchen, Cooley Godward Kronish, Farella Braun + Martel, Howard Rice Nemerovski Canady Falk & Rabkin, Morrison & Foerster, Orrick Herrington & Sutcliffe, Pillsbury Winthrop Shaw Pittman and Thelen Reid & Priest.

So its undoubtedly a win for Big Law when they bleed associates and clients.  Not so much for the departing entrepreneurs.  Then again, there’s a good deal of lateral movement of partners among firms, and one or more of these amici may come to regret the holding when they find they can’t seek indemnification.

UPDATE (9/28/07 #2):  The case prompts an article at Law.com.  The article closes with this:  “Moscarino, who represented Arter & Hadden, noted that the ruling helps not only large firms, but solo practitioners and small-firm lawyers who might leave their practices for other law-related jobs or judgeships.”

Technorati Tags: legal malpractice

The court concludes the conviction on multiple counts was proper because the applicable test — whether the statutory elements of the greater offense include all of the statutory elements of the lesser offense — looks only to the statutory elements of the offenses and not to the facts of the particular case:

[T]he applicable test here of a necessarily included offense, the statutory elements test–a much narrower test than the outdated test set forth in cases upon which defendant relies–was not met, and defendant’s convictions for selling and possessing for sale are proper. [Citation.]

The outdated test of a necessarily included offense upon which defendant relies encompasses an offense in which the facts established by the evidence at trial make it impossible to commit one offense without also committing another. [Citation.]

Looking solely to the statutory elements, the court concludes that the element of possession in count two (possession for sale) is not necessary for a conviction on count one (sale) since a defendant is guilty of sale even for brokering the sale of cocaine in the possession of someone else. It doesn’t matter that in this case, the defendant was indeed in possession.

If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says.  Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.

The Court of Appeal finds that CALCRIM No. 226 is essentially equivalent to another criminal jury instruction that has withstood challenge in the Supreme Court.  That instruction is CALJIC No. 2.21.2:

A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others.  You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.

Warner’s emphasis on “should” ignores the word following: “CALCRIM No. 226 states that the jury “should consider not believing” – not that the jury should not believe – anything in the testimony of a witness who lied about something significant.” (Emphasis added.)

In the end, the court finds the differences to be semantic only:

Since Warner fails to persuade us that semantic differences between CALCRIM No. 226 and CALJIC No. 2.21.2 are even material, let alone prejudicial, we reject his challenge to the former by deferring to a long line of California Supreme Court cases rebuffing analogous challenges to the latter. 

So CALCRIM No. 226 is safe for now.

The juvenile court orders the mother to complete an in-patient drug treatment program as part of the disposition care plan and leaves all prior orders in effect, including the children’s placement and supervised visits from the mother.

Do the children have standing to appeal?  In In re Neil D., case no. B195487 (2d Dist. August 28, 2007, ordered published Sept. 17, 2007), the Court of Appeal says “no.”  Since the order appealed from leaves prior orders in effect, including the children’s placement and visitation, the children are not aggrieved parties.

That answer surprises me a little, because it seems to me that in-patient drug rehabilitation would necessarily interfere with visitation.  Even though the court later notes that the mother could continue to visit while in rehab, it does not rely on that fact in determining that the children lack standing.

Mother, on the other hand, has standing to appeal.  Her claim that the in-patient requirement amounts to coerced incarceration raises a constitutional issue, and the order “arguably affects Mother’s task of reunifying with her children.”

Lee alleged that Blue Shield wrongfully suspended him from its network of medical providers for medical incompetence and then illegally terminated his provider contract for failing to cooperate in the administrative process.  His suit alleged tort, contract, and declaratory relief theories.  The trial court sustained a demurrer brought on the ground that Lee did not exhaust his administrative remedies because the hearing process (commonly called an “809 hearing” because it is set out at Business and Professions Code sections 809-809.9) was terminated by Blue Shield for Lee’s failure to cooperate with discovery.

The court of appeal upholds the demurrer as to the tort and contract claims, but reverses on the declaratory relief claim.  It holds that the superior court should have treated the declaratory relief claim

as a petition requesting the court to issue a writ of mandate ordering Blue Shield to vacate its decision terminating his provider status for failure to cooperate with the 809 hearing and to reinstate the 809 proceedings.

The court has great discretion in how to construe pleadings (citations omitted):

A complainant’s remedy for the arbitrary or improper refusal by an organization to hold a hearing is an order directing the organization to do so.  Such an order is usually obtained through a petition for a writ of mandate. But not always. Regardless of how a pleading is labeled or a prayer is framed, “[a] court may grant any relief consistent with the case made by the petitioner and embraced within the issue.”

A complaint for declaratory relief “may be regarded as a petition for a writ of mandate.”

Since the allegations of the complaint, if true, would entitle Lee to a writ of mandate, the court holds that the trial court should have interpreted his declaratory relief claim as a mandate petition.  It remands to the trial court with directions to so treat it.

Family Code section 4960, subdivision (a)(2), part of California’s implementation of the UIFSA, requires (among other things) that before a California court can modify a child support order issued in another state, “all of the parties who are individuals have filed written consents in the issuing tribunal for a tribunal of this state to modify the support order and assume continuing, exclusive jurisdiction over the order.”  Knabe insisted that because he did not sign the stipulation, this requirement was not satisfied.

The distinction between procedural and substantive rights — the normal division between what an attorney may bind a client to and what he may not — is complicated in family law cases, says the court, by the “complex and ongoing relationship between the parties and the matters they seek to resolve.”  While an attorney may not bind a client to a stipulation that resolves issues “central to the controversy,” an attorney may stipulate on behalf of the client to resolution of matters “which are insubstantial and collateral to the heart of the dispute.”

Here, even though the agreement to a change in jurisdiction is “a more significant procedural matter than simply agreeing to a continue a motion hearing to a new date,” it nonetheless “did not touch the heart of the dispute.”  “Indeed, the stipulation did not narrow any of the issues to be resolved on the merits of the motion.”  Thus, Knabe was bound by his attorney’s stipulation to the change in jurisdiction.

Two partners to a venture concerning the insured real property arbitrated a dispute between them.  During the arbitration, the property suffered a fire.  The insured partner submitted an insurance claim, and the arbitration award included the appointment of a receiver to take possession of the property and any insurance proceeds, including settlement proceeds from the existing insurance claim.  The trial court confirmed the arbitration award.

The receiver eventually grew dissatisfied with the handling of the claim.  He sued Fire insurance Exchange for insurance bad faith and misrepresentation, among other claims.

On appeal, Fire Insurance Exchange contended that the arbitrator lacked authority to appoint a receiver as part of the award.  It argued that the appointment was “void for all purposes,” thus the arbitrator was “‘not the proper real party in interest” and “was not entitled to damages, attorney fees, or costs.” 

The court held that the merits of this argument were immaterial because Fire waived the issue by not raising it in the trial court.

Here’s where the difference between void and voidable judgments becomes important . . . 

Fire tried to get around its waiver of the issue by arguing that because the court order confirming the appointment of the receiver was a void act, it could be challenged at any time. 

The court summarizes in a footnote the general rules regarding void and voidable judgments.  Void judgments result from a court lacking fundamental jurisdiction over the parties or subject matter, and are subject to collateral attack at any time.  On the other hand, a court with fundamental jurisdiction renders a valid but voidable judgment when it “acts in excess of its jurisdiction,” which it does “when it has no power to act ‘except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.’”  (Citation omitted.)  A party may be precluded from setting aside a voidable judgment by estoppel or other equitable considerations.

The Court of Appeal finds that the order appointing the receiver should not be avoided under the circumstances, but for reasons different from what a reader might anticipate from the statement of the rules in the previous paragraph of this post.  Noting that the trial court unquestionably had fundamental jurisdiction over the parties and subject matter, the court finds that the only question is whether the order confirming the appointment of the receiver should be avoided.  Though the receiver presented equitable reasons against doing so — the statute of limitations had run on the insured partner’s claim during the litigation, and the receiver had expended $700,00 on attorneys – the court instead notes  a different standard: whether an act is “in excess of jurisdiction and thus voidable is enforced depends in large part on ‘the degree of the procedural irregularity and whether the court’s act violated a comprehensive statutory scheme or offended public policy.’”  (Citation omitted.) 

Thus, even if the court exceeded its jurisdiction by ratifying and adopting the arbitrator’s ruling, that error does not compel reversal. Nevertheless, the order was not unjustified in the circumstances before the court. Confirming respondent’s appointment made it a judicial one, and we cannot presume that the order was made without due consideration of the merits of the parties’ joint request.

Given the equitable factors available, I am surprised the court relied on this more ambiguous standard of “the degree of irregularity” present in the order, at least without going into more detail on the rule.  It could have at least noted the equitable factors as an alternate reason not to avoid the order.

California Appellate Report has a detailed post about the court taking both sides to task for making unsupported factual assertions in their briefs.  Nothing like being embarrassed in a published opinion.

 Cal. Civ. Blog has notes on the court’s decision regarding a second issue — punitive damages — on which Fire prevails.

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.

In  Marlin v. AIMCO Venezia, case no. B188407 (2d Dist. August 16, 2007), tenants (or “Marlins”) filed a declaratory judgment action against their landlord for a declaration of their respective rights under the Ellis Act, which allows “landlords who comply with its terms to go out of the rental business by evicting their tenants and withdrawing all units from the market even if doing so would otherwise violate a local rent control ordinance.”  The landlord filed a successful anti-SLAPP motion (Code Civ. Proc., § 425.16) and the case was dismissed.  While the appeal was pending, the landlord initiated eviction proceedings against the tenants and claimed that the eviction proceedings mooted the appeal because the parties’ rights under the Ellis Act could be litigated in the eviction proceedings.

The Court of Appeal disagrees.  The eviction proceedings do not end the controversy between the parties, they merely provide another forum for their resolution:

Defendants’ instigating unlawful detainer proceedings against the Marlins did not moot the controversy between the parties over the applicability of the Ellis Act, the conditions on the tentative tract map and the city rent control ordinances.  Mootness occurs when a case has “‘lost that essential character’” of an existing controversy.  A controversy remains between the parties as to their respective rights.  Indeed defendants concede this in their statement claiming the Marlins can raise their concerns in the unlawful detainer action.  The question is not whether the controversy is moot but where the controversy should be adjudicated: in the Marlins’ declaratory rights action or in the defendants’ unlawful detainer action.  The parties have not briefed this issue and we express no view on it.

(Footnote omitted.)

The court goes on to the merits for a second reason: “Furthermore, we have broad discretion to render an opinion in a case which poses issues of broad public interest and which are likely to recur even if an event occurring during the pendency of the appeal might otherwise render the underlying controversy moot.”

(Footnote omitted.)

In the published portion of this opinion, we hold that a motion for nonsuit, pursuant to Code of Civil Procedure section 581c, subdivision (a), does lie in a trial by the court.  We publish on this issue because the disagreement of our concurring colleague demonstrates that there is a conflict of authority.

More specifically, the court holds that nonsuit is available in a bench trial immediately after the close of plaintiff’s opening statement.  The court’s exercise in statutory interpretation of Section 581c is detailed.  It examines not only Section 581c, but also Code of Civil Procedure section 631.8, which allows motions for judgment in bench trials after presentation of the evidence, and applies the “last antecedent rule.”  The court distinguishes a line of cases finding that Section 631.8 made nonsuit in a bench trial unavailable  because those cases considered a motion for nonsuit after the close of evidence rather than after opening statement.  It cites numerous cases agreeing with it that nonsuit remains available in a court trial after opening statement even after the enactment of Section 631.8.

The court’s effort seems wasted, for it concludes in the unpublished portion of its opinion that the trial court improperly granted the nonsuit motion.  The majority is taken to task by the concurring and dissenting opinion, in which Justice Cornell insists that the holding on availability of nonsuit in court trials is both wrongly decided and dictum.  The majority agrees it could decide the case without tackling the availability of nonsuit, but justifies its holding in part because two oft-used secondary authorities opine on the issue, and their position should be either confirmed or countered by the court.

We hold that Code of Civil Procedure section 2019.210 (formerly Code of Civil Procedure section 2019, subdivision (d)), which provides that discovery relating to a trade secret may not commence until the trade secret is identified with “reasonable particularity,” is not limited in its application to a cause of action under the Uniform Trade Secrets Act (UTSA) (Civ. Code, §§ 3426-3426.11), for misappropriation of the trade secret, but extends to any cause of action which relates to the trade secret. We also hold that where the plaintiff makes a showing that is reasonable, i.e. fair, proper, just, rational, the trade secret has been described with “reasonable particularity,” and is sufficient to permit discovery to commence.

The italicized holding is about as specific as the court can get, because the trade secret designation was under seal.  In footnote 2 of the opinion, the court states:

To avoid disclosure of the parties’ confidential information we are, in this publicly available opinion, purposefully vague in our descriptions of the claimed trade secrets, the trade secret designations, the expert witness declarations and other related documents.

The court comes up with a pretty good articulation of the standard for “reasonable particularity,” considering it is foreclosed from demonstrating specifically how the standard applies to the trade secrets before it.

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

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

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

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

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

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

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

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

“Notwithstanding any other provision of law, if the court has ordered an issue or issues bifurcated for separate trial or hearing in advance of the disposition of the entire case, a court of appeal may order an issue or issues transferred to it for hearing and decision when the court that heard the issue or issues certifies that the appeal is appropriate. Certification by the court shall be in accordance with rules promulgated by the Judicial Council.”

In Marriage of Lafkas, case no. B189280 (2d Dist. August 6, 2007) the pro per husband appealed from an order on the bifurcated issue of asset disposition.  Conceding that he faileed to obtain a certificate of probable cause from the trial court and move for leave in the Court of Appeal, he nonetheless contended that his appeal should not be dismissed because the court’s grant of wife’s application for attorney’s fees to retain appellate counsel operated as a de facto certificate of probable cause.  The court rejects this contention because neither the Family Code nor the applicable rules provide for de facto certificates.

Here, the rules are the rules.  Don’t try to bend them.  Besides, the court points out that husband still has an appellate remedy by way of appeal from the eventual judgment.

This is a short case worth a read from anyone who wants to gain some quick familiarity with principles of appellate jurisdiction, as the court sums some of those principles up as it begins its discussion of the merits.

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.

A residential subdivision in Laguna Beach is plagued with litigation involving a morass of legal issues and a plethora of parties — both public and private. The litigation was commenced by Three Arch Bay District against the City of Laguna Beach, Charles Kinney (Kinney) and numerous other parties.  Kinney, a homeowner in the subdivision and a lawyer, filed a cross-complaint and a number of amended cross-complaints, against the State of California, homeowner Sherrie Overton (Overton), and many other parties.

Tiny portions of the litigation have been separated out one by one, bifurcated, and set for trial, in order, we presume, to make an unwieldy ball of wax just a little bit smaller. Those tiny portions have come to us in isolation, one appeal at a time.  But Kinney, as one of the primary protagonists in the litigation, keeps complaining that the courts never slay the dragon and put the beast to rest. However, if the litigation is continually brought to us in bits and pieces, we can only address bits and pieces. We cannot address matters that are outside of the record on appeal or issues that do not arise from the portion of the litigation underlying the appeal in question.  When all  of the parties and issues are not put before this court, and we are not provided with all of the evidence necessary to finally address and resolve all ills, it is not possible for us to slay the dragon. Unless and until Kinney or another party to the litigation drags the entire beast before this court, we will continue to provide answers piecemeal — one talon at a time.

Nifty writing to illustrate a simple principle: the court can review only the dispute properly brought before it, and no more, even if there is a lot more background to the case.

Technorati Tags: California appellate practice, judgment, legal writing

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.

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.

Before the Supreme Court, a court of appeal, or the appellate division of a superior court renders a decision in a proceeding other than a summary denial of a petition for an extraordinary writ, based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing.  If the court fails to afford that opportunity, a rehearing shall be ordered upon timely petition of any
party.

Seems rather straightforward, right?  Perhaps that’s why the Supreme Court confesses in today’s unanimous opinion in People v. Alice, case no. S144501 (July 5, 2007), that “we never have examined [Government Code section 68081's] meaning in depth.”  It then proceeds to do just that, providing some valuable lessons . . .

The People appealed both from (1) an order dismissing a count of the information and (2) from what it characterized as a subsequent “order granting drug treatment probation.”  The Court of Appeal decided that the appeal was authorized by Penal Code section 1238, subdivision (a)(10) as an appeal of “an unlawful sentence” even though neither party had briefed that basis for appeal.  (The apparent rationale of the Court of Appeal was that the defendant would not have been entitled to probation had a portion of the information not been set aside.)  The Supreme Court holds that the Court of Appeal violated section 68081 by basing its decision on the “unlawful sentence” ground for appeal because the issue was not briefed by the parties and thus also erred by refusing the timely request for rehearing.

First, section 68081 requires that the parties have an opportunity to brief an issue, not that they actually brief it.  The Supreme Court holds that since court rules require the filing of opening and responding briefs, the Rules of Court not only give each party the opportunity to brief every issue that is raised in the appeal, but also any issues that are “fairly included within the issues actually raised.”

Second, section 68081 contemplates an opportunity to brief the issue.  This requirement is not satisfied by an opportunity to address the issue at oral argument.

Applying the first rule, the Supreme Court finds that the issue of whether the People’s appeal was authorized as the appeal of an “unlawful sentence” under Penal Code section 1238, subdivision (a)(10) was not “fairly included” in the parties’ arguments over the bases for appeal.  The People argued only that Penal Code section 1238, subdivision (a)(1) authorized a direct appeal from an order dismissing a charge, and that Penal Code section 1238, subdivision (a)(5) authorized appeal from an order erroneously granting drug treatment probation.  The defendant had only argued that both aspects of the appeal were a prohibited appeal of a probation order.  (Penal Code § 1238, subd. (d).)  The court finds that the issue of whether the sentence was unlawful “is not inherent in the question of whether there was an unlawful order setting aside a portion of the information or whether there was an erroneous order granting probation.”

Applying the second rule, the Supreme Court finds that the Court of Appeal’s issuance of a tentative decision that invited the parties to address the issue at oral argument is not enough to save its judgment.

The decision does little to define the “fairly included” standard.  The Supreme Court states:

We do not suggest, of course, that the parties have a right under section 68081 to submit supplemental briefs or be granted a rehearing each time an appellate court relies upon authority or employs a mode of analysis that was not briefed by the parties. The parties need only have been given an opportunity to brief the issue decided by the court and the fact that a party does not address an issue, mode of analysis, or authority that is raised or fairly included within the issues raised does not implicate the protections of section 68081.

Think very carefully about the scope of the issues raised in the briefs.  Look beyond the surface to determine if there are issues or “modes of analysis” that are “fairly included” within the issues that are explicitly raised.  Failure to respond to these “fairly included” points may result in a loss based on an issue that you never addressed.