Category Archives: California Procedure

January 24, 2008

Scope of Decision by Reviewing Court Can Limit Preclusive Effect of Trial Court Ruling

In Zevnik v. Superior Court, case no. B201105 (2d Dist. Jan 18, 2008), the Court of Appeal continues a string of recent cases holding (contrary to older cases) that where a trial court relies on alternative grounds, each sufficient to uphold its decision, and appellate review follows, only the ground relied on by the appellate court has collateral estoppel (issue preclusion) effect.

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.

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Posted in: California Procedure

January 18, 2008

I Hate Motions for Reconsideration

Another good post from Professor Martin yesterday, this time concerning In Re Marriage of Barthold (1st Dist. Jan. 15, 2008).  The court summarizes its holding in the initial paragraphs:

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.

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Posted in: California Procedure, Reconsideration

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January 17, 2008

Court of Appeal Takes On Dispositive Motions in Limine

I’ve told you about one or two of my lingusitic peeves before. In Amtower v. Photon Dynamics, Inc., case no. H030386 (6th Dist. Jan. 17, 2008), the Court of Appeal takes on one of my peeves about procedure, and I’m glad to see it.

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?

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Posted in: Appellate Procedure, California Procedure, Motions in Limine, Nonsuit, Standard of Review

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January 10, 2008

The Liberty of the Court of Appeal

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

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

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

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

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

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

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Posted in: California Court of Appeal, California Courts, California Procedure, Stare Decisis

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January 9, 2008

Challenge to Post-Plea Sentencing Procedure does not Require Certificate of Probable Cause

After being found mentally competent to stand trial, Rodney Oglesby pleaded guilty to committing domestic violence, aggravated assault and — worst of all, or at least co-equal with his other crimes, at least according to PETA — killing a kitten.  The competency finding was based, per the stipulation of the parties, on just one of the psychiatric reports.  The other psychiatrist opined he was incompetent.

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.

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Posted in: Appellate Jurisdiction, Appellate Procedure, California Procedure, Criminal Procedure

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January 4, 2008

Compare and Contrast: Virginia and California

Waaaaaayy outside our usual jurisdiction, but California appellate lawyers may be interested in reading this post by “S. COTUS” at Appellate Law & Practice, which in turn links to this post at the SW Virginia Law Blog about the en banc Virginia Court of Appeals opinion in Moore v. Commonwealth.  If I read these posts correctly, and they accurately portray the case, the posts demonstrate a wildly different approach to appellate jurisdiction in Virginia than in California, for which we should probably all (well, at least those of us representing appellants, and all appellants in pro per) breathe a sigh of relief.

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.

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Posted in: Appellate Procedure, California Courts, California Procedure

January 3, 2008

Easing Back into Things with Some Reminders from the Judicial Council

OK, I’m going to ease back into posting here with some easy ones.

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!

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Posted in: Appellate Procedure, California Courts, California Procedure

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December 18, 2007

California’s 90-Day Rule

The California Constitution (Article VI, sec. 19) prohibits a judge from drawing pay “while any cause before the judge remains pending and undetermined for 90 days after it has been submitted for decision.” A one-page “barrister’s tips” column by Ben Shatz at page 11 of this month’s Los Angeles Lawyer (in PDF format here) gives some nifty background on how this rule is enforced and how it can affect proceedings, including decisions to vacate submission and the scheduling of oral argument.

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Posted in: Appellate Procedure, California Procedure, Judges

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December 14, 2007

Supremes Deny Republication of Lockheed Litigation Cases

You might remember my post from early November about the dismissal of Supreme Court review of the Lockheed Litigation Cases.   Review was dismissed because a majority of the justices recused themselves due to conflicts of interest created by their ownership of stock in one or more of the oil company defendants.

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.

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Posted in: Appellate Procedure, California Procedure, Stare Decisis, Supreme Court Review

December 3, 2007

Split of Authority re Mandatory Relief under CCP § 473(b)

The first time I read Code of Civil Procedure section 473(b) and the practice guides about it, it horrified me. There I was, a very young lawyer at a BigLaw firm, reading that the court must grant relief from a default if the attorney swears by affidavit that the default was due to the mistake, inadvertence, surprise, or neglect of the attorney. I thought that surely, from time to time, some attorney has relied on this provision, admitting fault, only to have the court deny relief because the relief sought did not fall within the mandatory provision of section 473(b). Shudder.

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?

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Posted in: California Procedure, Motions to Vacate

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November 19, 2007

Potentially Void Judgment Reversed on the Merits

Here’s a post I’ve been saving for a time where I’m too busy to spend much time on new content. I may get a post up later in the day, but in the meantime, I’ll get on my soapbox about why I think the Court of Appeal blew it on a jurisdictional question in Holland v. Union Pacific Railroad Co., case no. C052833 (3d Dist. July 30, 2007, certified for publication August 29, 2007).

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.

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Posted in: California Procedure, Judgment, Judgment, Jurisdiction, Summary Judgment, Summary Judgment

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November 6, 2007

Supreme Court Gets Rid of Conflicts by Dismissing Case

Laura Ernde, a staff writer at the Daily Journal, alerted me to her piece in yesterday’s edition of that paper about last week’s dismissal of the Lockheed Litigation Cases, case no. S132167. According to her article, this was one of the oldest matters on the court’s docket and the dismissal comes more than two years after briefing was complete.

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.

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Posted in: California Procedure, California Supreme Court, Evidence, Expert Witnesses, Torts

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November 5, 2007

Recent Judicial Council Action on Appellate Issues

The Judicial Council approved several recommendations of the Appellate Advisory Panel on the Council’s “consent agenda” for its October 26, 2007 meeting. Those recommendations include rule amendments/additions regarding costs and sanctions, designation of the record on appeal, clarification regarding extensions of time to appeal, overlength briefs in capital cases, and citation format. See the agenda (available as a PDF download here) for details.

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.

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Posted in: California Courts, California Procedure

November 5, 2007

Enforcing a Foreign Judgment

You don’t always get three positions advocated on a single issue in a single appeal. On the subject of the statute of limitations for enforcing a foreign money judgment, that’s exactly what the Court of Appeal heard in Guimaraes v. Northrup Grumman, case no. B194205 (2d Dist. Oct. 30, 2007).

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.

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Posted in: California Procedure, Judgment

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October 29, 2007

John Doe Arrest Warrant Based on DNA Satisfies Statute of Limitations

In People v. Robinson, case no. C044703 (3d Dist. Oct. 26, 2007), the court of appeal holds that a “John Doe” arrest warrant that describes the person to be seized by DNA profile suffices to “commence” a prosecution for purposes of the statute of limitations for a sexual offense.

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.)

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Posted in: California Procedure, Criminal Procedure

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October 26, 2007

Beware the Statute of Frauds

As I think many lawyers are, I am constantly amazed at the relationships people are willing to enter into on little more than a handshake.  As every first-year law student knows, the Statute of Frauds can prevent the enforcement of a certain contracts not in writing, and in Elias Real Estate, LLC v. Tseng, case no. B192857 (2d Dist. Oct. 25, 2007), it rears its ugly head and gives us a rare example of reversal due (in part) to insufficiency of the evidence.

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.

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Posted in: Appellate Procedure, California Procedure, Contracts, Real Estate, Standard of Review

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October 25, 2007

Domestic Violence Case Provides Grounds for Review Despite Mootness

It turns out that the Court of Appeal decided two cases yesterday, despite their mootness, on the ground that the issues presented involved important public policies and were “capable of repetition yet evading review. Both are family law cases. (I wrote about the first in the post immediately preceding this one.)

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.”

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Posted in: Appellate Jurisdiction, Appellate Procedure, California Procedure, Family Law

October 25, 2007

Siblings are Siblings Regardless of Parental Rights Termination

Catherine’s parental rights to Jose were terminated by the court. A few years later, she gave birth to Miguel and Miguel sought sibling visitation with Jose. (Welf. & Inst. Code, § 388.) In In re Miguel A., case no. D050694 (4th Dist. Oct. 24, 2007), the trial court denied the petition for visitation on the ground that Miguel and Jose never concurrently shared a parent because of the termination of Catherine’s parental rights prior to Miguel’s birth, and thus they were not siblings. The Court of Appeal finds error as a matter of law.

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.

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Posted in: Appellate Jurisdiction, Appellate Procedure, California Procedure, Family Law

October 24, 2007

Failure to Brief and the Bounds of Discretion

Two interesting, though not new, appellate angles in Nakamura v. Parker, case no. A115626 (1st Dist. Oct. 22, 2007). It’s an appeal from the summary denial of a temporary restraining order sought under the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq.), which had the effect of dismissing the appellant’s entire action.

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.

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Posted in: Appellate Procedure, Briefing, California Procedure, Family Law, Standard of Review

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October 23, 2007

Relation Back Doctrine Applies in Trial Deadline Context

In Brumley v. FDCC California, Inc., case no. A114840 (1st Dist. Oct. 22, 2007), the Court of Appeal holds that the relation back doctrine applies to claims in an action when dismissal is sought on the ground that plaintiff(s) failed to bring the action to trial within 5 years of filing the original complaint.  (Code of Civil Procedure sections 583.310, 583.360.)  Thus, where the wife and children of the original plaintiff substituted in as plaintiffs for purposes of personal injury asbestos claims that survived his death and amended the complaint to include a  claim for wrongful death, the 5-year deadline for bringing the wrongful death claim to trial ran from the date of amendment, not the original complaint, and only the surviving claims were properly dismissed for failure to bring to trial within 5 years.

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.

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Posted in: California Procedure

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October 22, 2007

CALCRIM No. 3450 Survives Appellate Challenge

CALCRIM No. 3450 is a long instruction that that sets forth the defendant’s burden of proof on insanity. Its very length and comprehensiveness appear to be what saves it in People v. Thomas, case no. C052849 (3d Dist. Oct. 22, 2007). The instruction includes this paragraph:

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.

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Posted in: California Procedure, Criminal Procedure

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October 11, 2007

Privilege within the Company

Lawyer advises the CEO of his client on some litigation strategy. Privileged communication, obviously. CEO then meets with his VPs and shares the information with them. Privileged?

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.

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Posted in: California Procedure, Discovery, Ethics, Evidence, Privilege

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October 8, 2007

Probable Success on an Anti-SLAPP Claim

The standard for demonstrating a probability of success on a claim that a party seeks to dismiss on anti-SLAPP grounds has defied any clear definition.  In Booker v. Rountree, case no. G038083 (4th Dist. Oct. 4, 2007), the court finds the standard is met under a quasi-summary judgment analysis — it is enough that the parties’ declarations gave competing versions of the facts and that Booker’s version, if believed, would lead to success.

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.

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Posted in: Anti-SLAPP, California Procedure

October 4, 2007

Court of Appeal to the Rescue Again

My case law blogging has been weighted heavily toward substantive legal developments this week because I haven’t seen anything really procedurally interesting.  Then along comes County of Orange v. Superior Court, case no. G037562 (4th Dist. Oct. 3, 2007) to make my week.

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.

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Posted in: Appellate Jurisdiction, Appellate Procedure, California Procedure, Writ Practice, Writ Review

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September 28, 2007

Legal Malpractice Tolling Decided by Supremes

It’s always nice to see a split of authority resolved.  Code of Civil Procedure section 340.6 provides that the limitations period for legal malpractice against “an attorney” is tolled while “[t]he attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.”  Before yesterday’s Supreme Court decision (just its second this month) in Beal Bank, SSB v. Arter & Hadden, LLP, case no. S141131(Sept. 27, 2007), the court of appeal had split on the question of whether the statute of limitations for legal malpractice is tolled against the former firm of an attorney who continues to represent the client after leaving the former firm.

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.”

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Posted in: California Procedure, Torts

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September 26, 2007

What Makes a Necessarily Included Offense?

In People v. Murphy, case no. C046923 (3d Dist. August 29, 2007, modified Sept. 25, 2007), the defendant contended that she was “improperly convicted for both selling the cocaine rock in count one and possessing that same rock for sale in count two, a necessarily included offense.” The record showed that the defendant was actually accused of possessing two cocaine rocks and did not show upon which rock the jury founded the conviction on the count for possession for sale.

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.

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Posted in: California Procedure, Criminal Procedure

September 18, 2007

CALCRIM No. 226 Survives Appellate Challenge

In People v. Wamer, case no. F051027 (5th Dist. Sept. 12, 2007), the Court of Appeal holds that CALCRIM No. 226 does not impermissibly lighten the prosecutor’s burden of proof.  Wamer, convicted of murder, contended that the last paragraph of the instruction lightened the prosecutor’s burden by its use of the words in bold italics in the below excerpt (emphasis added), the last paragraph of the instruction:

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.

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Posted in: California Procedure, Criminal Procedure, Juries

September 18, 2007

Mother Ordered to In-Patient Drug Rehabilitation has Standing to Appeal, but Her Kids Don’t

The mother of three minor children is determined to be incapable of providing regular care and supervision for them.  (Welf. & Inst. Code, § 300.)  The children are placed with their maternal grandmother, with supervised visits from the mother.

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.”

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Posted in: Appellate Jurisdiction, Appellate Procedure, California Procedure, Juveniles, Standing to Appeal

September 14, 2007

You Might Be an Appellate Lawyer and Not Even Know it

At least, that’s one lesson you can take away from Lee v. Blue Shield of California, case no. B190441 (2d Dist. Sept. 7, 2007).

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.

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Posted in: California Procedure, Declaratory Relief, Demurrer

September 11, 2007

Attorneys Can Bind Parties to Change of Jurisdiction under UIFSA

Is a stipulation to a change of jurisdiction from another state to California under the Uniform Interstate Family Support Act effective if it is signed only by the parties’ attorneys and not by the parties themselves?  In Knabe v. Brister, case no. C053225 (3d Dist. Sept. 6, 2007), the Court of Appeal says it is.

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.

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Posted in: California Procedure, Family Law, Jurisdiction

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