Third District Court of Appeal creates a “quagmire” regarding Prop 47 sentence reductions

Prop 47

You don’t have to take my word for it. The court uses the word “quagmire” in yesterday’s decision in People v. Scarbrough, case no. C075414 (3d. Dist. Sept. 29, 2015), in which it holds that a trial court lacks jurisdiction to recall and reduce sentences under Proposition 47 when the judgment for those crimes is on appeal.

First, a brief reminder of what the California electorate voted into law last November. Prop 47 reclassifies certain crimes from felonies to misdemeanors and provides that persons convicted of felonies that are now classified as misdemeanors may “petition for a recall of sentence” to request resentencing under the new standards.

You can imagine there are quite a few defendants in line for this process. The Los Angeles Times reported just a few weeks after passage of Prop 47:

Judges expect that tens of thousands of Californians may seek to have their felony convictions reduced. Courts have had to scramble to handle the surge in workload, and some agencies are planning to ask for more public funding to cover the added duties.

Now, on to the quagmire. Defendant Scarbrough appealed her felony convictions. While her appeal was pending, she also filed a Prop 47 petition to be resentenced on the same convictions, and the trial court entered an order reducing her original sentence of 9 years, 4 months to just 6 years. Scarbrough attempted to abandon her appeal, but the Court of Appeal refused to dismiss it and asked for supplemental briefing on “an issue that is likely to recur and to otherwise evade review” — whether the trial court had jurisdiction to rule on a petition for recall and resentencing while appeal from the same convictions was pending.

Because the trial court determined that the trial court lacked such jurisdiction, its order reducing Scarbrough’s sentence is void. The obvious question then becomes: What about other defendants that have already been resentenced while their appeals were pending? Well, the court acknowledges that its ruling creates a mess, but provides no guidance as to how it will be cleaned up:

We do recognize that several people with pending appeals have been resentenced ostensibly pursuant to section 1170.18 while their appeals were pending. This does create a quagmire, especially as regards individuals who have been released as a result of  their resentencing. However, that is an insufficient reason for us to find concurrent jurisdiction where it was not statutorily afforded.

Given the news coverage about the “flood” of Prop 47 petitions — the Sacramento Bee reported last month that 4,347 prisoners had been release under prop 47 through the first week of August, with many thousands more having been resentenced without being released — I was surprised that the court said that several” people had their resentencing petitions granted while their appeals were pending. While it makes sense that the vast majority of the petitions are from prisoners whose appeals are long over, “several” still strikes me as a surprising characterization of the number that have been resentenced or released while their appeals were pending.

Perhaps that makes the term quagmire all the more significant. If “several” void resentencing orders create a quagmire, what would have been created if the number of void resentencing orders numbered in the hundreds or thousands?

The implications on appeal of “clarified” trial court orders

EraserIt drives me crazy when an adverse party asks the trial court to “clarify” a recent ruling. Too often, such a request is not a request for clarification at all, but instead an effort to expand the scope of the order or otherwise change its meaning. Funny how these requests for “clarification” are brought up after an attorney realizes he neglected to make an argument, ask for a specific form of relief, or prejudiced his client’s interest by an admission in court.

Such was the case in In re Christopher B., case no. C077467 (3rd Dist. Sept. 28, 2015), a “Murphy conservatorship” proceeding. (Welf. &  Inst. Code, §§ 5000, et seq., 5008, subd. (h)(1)(B), 5361; Pen Code, § 1370.) A Murphy conservatorship is premised on the proposed conservatee’s mental unfitness to stand trial on specified crimes and the lack of prospect of restoration to competency. There must be a pending criminal proceeding in order to establish a Murphy conservatorship . . . which is where the problems started for the Public Guardian seeking to establish the conservatorship.

Christopher B. was charged by criminal complaint with the prerequisite crimes and found not competent to stand trial, and his criminal proceedings were stayed while he was committed to a state hospital. As he neared the end of his maximum legal commitment there, the hospital determined that he could not be restored to competency because he refused voluntary treatment, and recommended a Murphy conservatorship.

With Christopher B.’s release imminent and the prosecutor unable to file a criminal information because of the stay of proceedings, the prosecutor instead obtained a new grand jury indictment on the same charges in order to establish the criminal proceedings prerequisite to a Murphy conservatorship.

You might be thinking that the indictment maneuver involved some sleight-of-hand, but it was perfectly legitimate. The sleight-of-hand wasn’t attempted until later (though I am not alleging it was intentional sleight-of-hand), after the prosecutor agreed to have the court dismiss the “charges” against Christopher B. Apparently recognizing after the fact that the dismissal of the charges would eliminate the prerequisite for a Murphy conservatorship, the prosecutor asked the court to “clarify” its ruling so that it dismissed only the original complaint and not the subsequent indictment. Even though Christopher B.’s defense counsel acquiesced to this request, that wasn’t the end of the matter.

In the conservatorship proceeding, Christopher B. argued that there was insufficient evidence of the prerequisite pending criminal proceeding. But wait, you say to yourself, didn’t the criminal court clarify its order to specify that the dismissal applied only to the complaint and not the indictment? The Court of Appeal doesn’t buy that for one minute, finding that this amounted to much more than a clarification:

In the present case, the criminal court issued an order of dismissal unambiguously dismissing the entire case at the request of the prosecution. Having realized the effect on the continued viability of the conservatorship proceeding, the prosecutor then sought on the next day to convince the criminal court to “clarify” that its ruling applied only to the underlying complaint. (It is unclear why the prosecutor chose to pursue this subterfuge rather than take the straightforward route of seeking a reindictment; at oral argument the parties did not explore, beyond conclusory assertions with limited analysis, whether a second prosecution would have been time barred.)

(Emphasis added.) In other words, this was not merely a clerical correction, which a trial court can always make. This was a correction of judicial error of a final judgment, something the criminal trial court had no jurisdiction to do. Calling the criminal trial court’s conduct “transparent efforts to garb its reconsideration of its dismissal of the criminal case in the cloak of “interpreting” an otherwise unambiguous dismissal order,” the Court of Appeal finds that the trial court lacked jurisdiction to correct the judgment, the original judgment dismissing all charges (thus applicable to the complaint and the indictment) stands, and there is thus no evidence of a pending criminal proceeding, requiring that the order establishing the Murphy conservatorship be reversed.

The lesson of Christopher B. is that a trial court’s “clarification” of a ruling must be closely examined to see if it implicates jurisdictional concerns. Litigators should consider this when seeking or opposing such clarification, and Orlando crime defense lawyers on appeal should give such “clarifications” special scrutiny.

The deadline for filing the memorandum and affidavits in support of a motion for new trial is not jurisdictional

Some parties try to make jurisdictional issues out of non-jurisdictional ones. You can hardly blame them, given the fatal nature of jurisdictional defects.

One recent attempt — but ultimately an unsuccessful one — was in Kabran v. Sharp Memorial Hospital (2015) 236 Cal.App.4th 1294, in which the appellant (Sharp) claimed that the trial court lacked jurisdiction to grant a new trial. That’s a somewhat surprising contention, seeing as how the respondent timely filed her notice of intention to move for a new trial (Code Civ. Proc., § 659, subd. (a)) and the court granted the motion within the 60-day jurisdictional deadline (Code Civ. Proc., § 660) on a ground stated in that notice.

With those two conditions satisfied, where did the appellant look for a lack of jurisdiction? At the respondent’s interim filing of her supporting memorandum and affidavits, that’s where. Unlike most motions, the initial filing in a motion for new trial is not a notice of motion and a supporting memorandum (plus affidavits, if any). Instead, all the moving party has to file is a notice of intention to move for a new trial, specifying the statutory grounds on which the motion will be made and whether the motion will be made upon affidavits, or the minutes of the court, or both. (Code Civ. Proc., § 659, subd. (a).) The supporting memorandum and affidavits are not due until later, and it was the untimeliness of that filing that the appellant attacked in Kabran.

Unfortunately, appellant Sharp came armed mostly with authorities holding that an untimely filing of the notice of intention precludes jurisdiction to grant a new trial. Sharp claimed that two of the cases supported applying the same rule to the deadline for filing the motion, memorandum, and affidavits, but the Court of Appeal rejects that characterization of the cases. It finds that the first “did not involve any issue concerning the filing of the supporting motion and affidavits.” (Emphasis added.) It concludes that the other case, Erikson v. Weiner (1996) 48 Cal.App.4th 1663, is on point but but runs counter to a long string of cases by which “[i]t has long been held that the time limits for filing affidavits and counteraffidavits for new trial motions, though ‘strict’ [citations], are not jurisdictional.” (Emphasis in original.) The court offers a more detailed criticism of Erikson, but I’ll leave that to your reading of Kabran.

How the nature of your appellate challenge can affect whether your appeal is dismissed for failure to obey trial court orders

The disentitlement doctrine allows a court of appeal to dismiss an appeal as a sanction for the appellant’s refusal to comply with trial court orders that remain in force while the appeal is pending. The lesson to be learned from today’s decision in Ironridge Global IV, Ltd. v. ScripsAmerica, Inc., case no. B256198 (2d Dist., June 30, 2015) comes from its discussion of how the right kind of appellate challenge to a trial court order — specifically, a jurisdictional challenge — can serve as a defense to the imposition of a dismissal sanction under the disentitlement doctrine. Unfortunately for the defendant-appellant in Ironbridge, calling a challenge a jurisdictional one does not make it so. The Court of Appeal characterizes the defendant’s challenge as a non-jurisdictional one, and dismisses the appeal for the defendant’s violation of the trial court order from which it appealed.

A settlement reached by the parties required defendant to issue plaintiff shares in the defendant corporation, and to issue plaintiff additional shares in the event the value of the shares decreased. The court approved the stipulation and retained jurisdiction to enforce its terms. About six months later, plaintiff applied ex parte for an order compelling the defendant to transfer additional shares to plaintiff and enjoining defendant from issuing shares to anyone else until it until it did so. The court ordered defendant to issue the additional shares within 24 hours and not to issue shares to anyone else until it complied.

In the defendant’s appeal, plaintiff moved to dismiss under the disentitlement doctrine, providing SEC filings showing that defendant had transferred more than 8 million shares to third parties in violation of the injunction. Defendant filed a “paltry” 1-1/2 page opposition to the motion citing “no authority whatsoever,” contending that the order was in excess of the trial court’s authority in that (1) the trial court could not enjoin issuance of shares to third parties because there was no such prohibition in the settlement, and (2) the court could not compel the issuance of shares to plaintiff on an ex parte basis.

The Court of Appeal isn’t buying it. The court acknowledges that “[a] person may refuse to comply with a court and raise as a defense to the imposition of sanctions that the order was beyond the jurisdiction of the court and therefore invalid,” but notes also that a person “may not assert as a defense that the order merely was erroneous.” (Internal quotations and citations omitted.) It finds that the defendant’s challenge falls into the latter category.

First, the court notes that a trial court has continuing power to enforce a stipulated  judgment entered in settlement of a case (Code Civ. Proc., § 664.6) and the power to “compel obedience to its judgments, orders, and process” in proceedings before it (Code Civ. Proc. § 128, subd. (a)(4)). Combined, those powers gave the trial court “authority to fashion orders to enforce compliance with a stipulated judgment.” Though the court does not state so explicitly, its point seems to be that the prohibitory injunction against issuance of shares to third parties was was a permissible coercive measure to enforce the settlement regardless of whether the stipulated judgment addressed such transfers.

The defendant’s challenge to the ex parte nature of the order is dispatched more easily. The settlement itself authorized the court to enforce the settlement on an ex parte basis.

Here, the parties requested that the court retain jurisdiction to enforce the settlement. The stipulation also provided that it could be enforced on an ex parte basis. There is no question that the court had jurisdiction over the parties and the subject matter, and that the parties expressly authorized the court to enforce the settlement on an ex parte basis. We find no procedural irregularity or other defect that would support a credible claim that the order was either void or voidable. Defendant’s appeal merely challenges the order as erroneous.

The lesson here, of course, is that if you are unable or unwilling to comply with a trial court order that remains in force pending an appeal from it, you had better be sure that you have a serious jurisdictional challenge to make against it. Do not convince yourself that your challenge on the merits is a jurisdictional one just because you do not want to obey the order, because the Court of Appeal will look beyond the label on your argument. Absent a solid jurisdictional challenge, disobedience of the trial court order can put your entire appeal at risk.

UPDATE: For those interested in reading more about the disentitlement doctrine, see the article referenced at Southern California Appellate News.

The Court of Appeal and the Supreme Court as courts of first resort?

Well, this is unusual. We usually refer to the Court of Appeal and Supreme Court as “reviewing courts” because they review the decisions of lower courts. But yesterday’s decision in Disenhouse v. Peevey, case no. D063799 (4th Dist. June 3, 2014) discloses a rare instance in which either of these courts is the court of first resort.

The Public Utilities Commission allegedly refused to allow the plaintiff to attend a commission meeting because of plaintiff’s affiliation with the Sierra Club. She sued in superior court to enjoin the meeting, on the ground that her exclusion violated the Bagley-Keene Open Meeting Act, then filed an ex parte application for a mandatory injunction requiring the commission to open the meeting to the public. The trial court held that it lacked jurisdiction and dismissed the complaint.

On appeal, the Fourth District, Division One, holds that the complaint was properly dismissed for lack of jurisdiction. The Open Meeting Act requires meetings of state bodies to be open to the public, and Government Code section 11130 provides that “any interested person may commence an action by mandamus,injunction, or declaratory relief for the purpose of stopping or preventing violations or threatened violations of [the Act].” But the California Constitution, at article XII, section 5, “confers plenary power on the Legislature to ‘establish the manner and scope of review of commission action in a court of record’ [citation],” and  the legislature did so in Public Utilities Code section 1759, which gives only the Supreme Court and the court of appeal “jurisdiction to review, reverse, correct, or annul any order or decision of the commission or to suspend or delay the execution or operation thereof, or to enjoin, restrain, or interfere with the commission in the performance of its official duties[.]”

The court notes there is no real conflict between the Open Meeting Act and the Public Utilities Code provisions. They can be read harmoniously because the Open Meeting Act makes mandamus a means of enforcing the Act, and the Public Utilities Code authorizes a mandamus action to be brought in the court of appeal or Supreme Court.

Fee-shifting on appeal from Berman Hearing is not applicable in dismissal for untimely appeal

I haven’t written about procedure on appeal from a “Berman hearing” — a wage claim heard by the Labor Commissioner — in a long time. Last Friday’s case of Arias v. Kardoulias, case no. B234263 (2d. Dist. July 27, 2012), gives me the opportunity to do so again because of the procedural question it raises, and also provides an opportunity to point out that not all appeals are the same.

You’ve read time and time again on this blog that appeals are very different from trials, but an appeal from a Berman hearing is not. An appeal from a Berman hearing is a trial, heard by the superior court (trial court) do novo — as if the hearing before the labor commissioner had never taken place. Indeed, a claimant can even add claims to the appeal that were never heard by the labor commissioner. This “new trial” posture provides the background for the court’s decision in Arias.

In Arias, the employee won an award before the labor commissioner. No doubt dissatisfied with the amount, she tried to appeal, but her appeal was dismissed due to the untimeliness of her notice of appeal.

At issue in the case was whether her employer was entitled to recover attorney fees and costs after obtaining dismissal of the appeal, pursuant to Labor Code section 98.2, subdivision (c), which provides:

If the party seeking review by filing an appeal to the superior court is unsuccessful in the appeal, the court shall determine the costs and reasonable attorney’s fees incurred by the other parties to the appeal, and assess that amount as a cost upon the party filing the appeal.   An employee is successful if the court awards an amount greater than zero.
The Court of Appeal finds that the employer has no right to fees under these circumstances. Although a timely appeal would have nullified the initial award in favor of the employee, here the employee still had an enforceable award of wages because the untimeliness of her appeal meant that her initial award was never nullified. Thus, even though she recovered nothing on the appeal, she still had a recovery that prevented her employer from recovering fees for the appeal.

As you might expect, the court was careful to point out that its decision applies only to jurisdictional dismissals, and leaves open the question of whether fee shifting would apply when a timely appeal is dismissed on another ground.

Service of Summons via Social Media

Sometimes, a defendant manages to dodge service of summons quite skillfully.  A colleague of mine once resorted to serving a  defendant with summons at the defendant’s daughter’s wedding because the defendant had successfully dodged many prior service attempts.

Now, an Australian court has authorized service of summons by notifying the defendant via Facebook (sidebar note at p. 10 of this PDF).

And why not? If it hasn’t already happened here, it probably will eventually. California law (Code Civ. Proc., § 415.50) already allows for service of summons by publication in newspapers in certain cases when a plaintiff shows that “the party to be served cannot with reasonable diligence be served in another manner specified in this article.” A Facebook posting is probably far more likely to actually reach the defendant than is notice by publication in a newspaper. At least so long as the defendant’s Facebook account has not gone stale.

We now have e-filing and e-service of other papers. Summonses may be the last holdout, but they can’t hold out forever.

Conceivably, service would even be possible via Twitter with a few words and a link to an online post of the summons, though I wouldn’t advocate it. Imagine seeing this tweet on your iPhone:

You’re being sued — here’s your summons: http://tinyurl. . . .

For the lighter side of social media evolution, watch this.

Hat tip: My dad.

In re B.S.

I know the title of this post implies that you’re about to read some complaint about an illogical decision.  After all, I doubt there’s a litigator alive who hasn’t received an adverse ruling or verdict and thought, “What a load of B.S.!”  (By the way, if you ever do feel that way, it’s time to call me.)  And that’s the way I was going to write this post, until I looked at the substance of the decision and got hooked, as I usually do, by a jurisdictional question.

In re B.S., case no. E045748 (4th Dist. Mar. 17, 2009) is a case of alleged jurisdictional conflict between two divisions of a superior court — the criminal court and juvenile court — both of which (and in that order) issued restraining orders against the appellant father of the infant B.S.  The criminal court order issued on Judicial Council form CR-160, and ordered that petitioner “must not harass, strike, threaten, assault (sexually or otherwise), follow, stalk, molest, destroy or damage personal or real property, disturb the peace, keep under surveillance, or block movements of” B.S. and B.S.’s mother.  At the juvenile court hearing, appellant insisted this restraining order was enough, and that it would be improper for the juvenile court to order anything more restrictive, but that is just what the juvenile court did.  On Judicial Council form JV-250, the juvenile court entered a more restrictive restraining order that also prevented the father from contacting (with extremely limited exceptions) the mother, B.S., and the maternal grandmother and required that he keep a minimum distance between himself and any of them.

The father contended on appeal that the juvenile court lacked jurisdiction to enter the restraining order because of the pre-existing restraining order issued by the criminal court.  That was an awfully tough sell in light of the statutory scheme:

Here, the Legislature has provided that a restraining order issued by a criminal court against a defendant charged with domestic violence “has precedence in enforcement over any civil court order against the defendant . . . .”  (Pen. Code, § 136.2, subd. (e)(2).)  Thus, it evidently contemplates the issuance of a criminal restraining order, despite a preexisting civil restraining order, or vice versa. 

This precedence was not undercut by the father’s resort to the policy behind the rule of exclusive concurrent jurisdiction:

The father, invoking the policy behind the rule of exclusive concurrent jurisdiction, argues that he has been saddled with “the burden of having to deal with multiple courts and potentially conflicting orders.”  However, he has not pointed out any actual conflict between the two orders.  The criminal order does not require him to do anything that the juvenile order prohibits, or vice versa.  Admittedly, the juvenile order is more restrictive than the criminal order.  Nevertheless, it is possible for him to comply with both.  In any event, the juvenile order provided that any apparent conflict must be resolved in favor of the criminal order, thus making any actual conflict impossible. 

The father argues that the two orders are “confusing” with regard to which order takes precedence.  But not so.  The criminal order provided, “[T]his order takes precedence over any conflicting protective order . . . if the protected person is a victim of domestic violence . . . .”  The juvenile order then similarly provided, “If a criminal restraining order . . . conflicts with a juvenile restraining order . . . , a law enforcement agency must enforce the criminal order.  . . . Any nonconflicting terms of the juvenile custody or visitation order remain in full force.”  Thus, both orders consistently provided that, in the event of an actual conflict, the criminal order would take precedence.

It’s difficult to see where the father’s lawyer saw any opening here.  This rule of precedence is not merely buried in the statutes; it is part of the standard language on forms CR-160 and JV-250. Perhaps the benefit of 20/20 hindsight is to blame, but I think this had to look unpromising from the beginning.

Judicial Opinion Shortcuts: Skipping the Substance of the Argument

Sometimes, a judicial opinion leaves you wondering what a party contended on appeal.  That’s always a little frustrating.  OK, not always, but when it involves a pet interest (in my case, jurisdiction), it leaves one wanting more.

Such is the case with White v. Mayflower Transit, case no. 07-55528 (9th Cir. Sept. 12, 2008), in which the court writes that the pro se appellant contended that the district court lacked removal jurisdiction over the case.  But they don’t explain the substance of the appellant’s argument.  They merely explain how the facts of the case demonstrate the applicability of a federal statute that grants exclusive jurisdiction to the federal courts.  Pretty cut-and-dried.

Why not say what the appellant’s argument was?  Given the fact he was pro se and the short, plain way in which the court establishes the existence of removal jurisdiction, I get the sense that we were robbed of a very interesting read.  Shouldn’t the court at least mention what the argument was, even if just to dismiss it as ridiculous and thereby reduce the chance that it is raised by a subsequent litigant?

I got curious enough that I looked up the case on Westlaw.  The appellant’s brief wasn’t available, but the appellee’s brief was, and according to appellee, the appellant’s arguments were “difficult to decipher.”  Thus the appellee, like the court, skipped right over the substance of appellant’s argument and presented an affirmative case for jurisdiction without trying to refute whatever it was appellant was trying to say.

Flexibility on Appellate Jurisdiction

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

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

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

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

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

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

Producer’s Lawsuit Crashes

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

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

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

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

Federal Question Jurisdiction and the Federal Arbitration Act

Anyone who reads this blog regularly knows I am a jurisdiction geek, so a post about Federal Question Jurisdiction and the Federal Arbitration Act at Civil Procedure Prof Blog caught my eye. The post links to an article on the topic at Social Science Research Network (SSRN).

UPDATE (3/26/08):  Texas Appellate Law Blog has an interesting post up on the related issue of whether parties can contract for judicial review of arbitration decisions under the FAA.

O.J.’s Jurisdictional Challenge Goes Nowhere

Does a court need to have personal jurisdiction over a judgment debtor at the time it renews a judgment in order for that renewal to be valid? In Goldman v. Simpson, case no. B200082 (2d Dist. Feb. 20, 2008), O.J. Simpson moved to vacate the renewal of the judgment against him on the ground it was void for lack of personal jurisdiction because he resided in Florida at the time the court renewed the judgment. He appealed from the denial of the motion to vacate. The Court of Appeal affirms.

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.

Process Serving Gamesmanship

It sometimes surprises me that in this information age, we are still required to make personal service of sumons. But, absent special circumstances, we are.  Even when the defendant is overseas.

Which was the situation in SEC v. Shaw, case no. 06-15204 (9th Cir. Dec. 11, 2007). The SEC had summons personally served on Shaw in England. Shaw defaulted, then waited more than three years to move to set aside the default judgment on the ground of lack of personal jurisdiction.

The Ninth holds that a defendant with actual notice of the proceedings, as Shaw had, bears the burden of proving he was not served with summons. Shaw can’t make that case here.

Nor does he prevail on his argument that even if he was served, service was invalid for failing to comply with the Hague Convention. Never raised that in the district court, you see.

It is gamesmanship like this that makes for eventual unpleasantness, as when a colleague of mine had a defendant personally served with summons at the defendant’s daughter’s wedding (or reception, I forget which). The defendant had deftly avoided service for some time, so my colleague figured the defendant “had it coming” to be served in the one place my colleague couuld find him.

Failure to Exhaust Administrative Remedies is a Waivable Defense

At first glance, it might appear that the Court of Appeal in Mokler v. County of Orange, case no. G036029 (4th Dist. Nov. 26, 2007) did the unthinkable: hold that a defendant had waived a jurisdictional defect. Not so fast. The fact of the matter is that not all jurisdictional defects are created equally.

Mokler provides a fairly good discussion of the difference between acts in the absence of fundamental jurisdiction — that is, acting in the absence of power to preside over the case — and acts in excess of jurisdiction, in which a court that has fundamental jurisdiction violates a restriction on the manner in which it can act. I discussed this difference in an earlier post regarding the significance of the difference in terms of whether an act is void ab initio or merely voidable (with the latter subject to equitable limitations).

In Mokler, the distinction is relevant to another question: may the defense of failure to exhaust administrative remedies be raised for the first time on appeal? Citing to Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, which held that the exhaustion of administrative remedies is a jurisdictional requirement, the County contended it could raise the defense at any time.

True enough if exhaustion were a matter of fundamental jurisdiction, without which the trial court would have no power to act. But the court finds that exhaustion fits better into the “in excess of jurisdiction” category because it is subject to numerous fact-intensive exceptions, such as agency delay, futility, or the agency’s incapacity to grant an adequate remedy. Citing other Court of Appeal cases holding that the defense may be waived, it holds that a party may not raise exhaustion for the first time on appeal because it would be inequitable to raise the defense after forcing the plaintiff to litigate a case to conclusion.

I tend to agree with Tom Caso at The Opening Brief that this case may be headed for the Supreme Court. The importance of this issue to public entities around the state, the existence of at least a nominal split of authority on the issue (though one side of that split appears to lack much logical support), and the County’s contention that the Supreme Court’s holding in Campbell v. Regents of the University of California (2005) 35 Cal.4th 311 resolved the split, suggest that the Supremes may want to clarify the limits of its holding in Campbell and provide guidance for suits against public entities.

Appeal from Non-Appealable Order Does not Deprive District Court of Jurisdiction

Nasciemento v. Dummer, case no. 06-35062 (9th Cir. Nov. 21, 2007) presents a host of jurisdictional issues in a concise opinion. I recommend you read the entire opinion and will concentrate on just one of the issues here, since most of the principles in the opinion are well-established.

Nasciemento purported to appeal from a non-appealable order of the Nevada district court that dismissed some, but not all, defendants and transfered the case to the Montana district court (the “transfer order”). After his appeal was dismissed, but nine days before the mandate issued, the Montana district court entered a discovery scheduling order.

When the Montana court refused to extend time for discovery, Nasciemento filed an appeal from that order (the “discovery order”), which is likewise unappealable. A week later, the Montana Court dismissed Nasciemento’s complaint as a sanction for his failure to appear at a pretrial conference and his lack of preparation for trial (the “dismisssal order”).

Nasciemento claimed that the district court lacked jurisdiction to enter the discovery schedule or dismiss his complaint as a sanction during the appeals pending respectively at the time of each order.

The Ninth disagrees. It holds that since it never had jurisdiction over either appeal, the Montana court, as the transferee court, had jurisdiction to take further action in the case.

Litigants would be wise to assume this rule will apply even where the question of jurisdiction over the appeal is a close call or where it is a question of first impression, because the court draws no distinction between the timing of the two district court orders. When the discovery order was entered, the appeal from the transfer order had already been dismissed (though mandate had not yet issued), so the lack of appellate jurisdiction had been definitely established. The dismissal order, however, was entered just a week after Nasciemento filed his notice of appeal from the discovery order, and thus presumably before that appeal was dismissed for lack of jurisdiction.

The timing of the determination of non-appealability would not appear to affect the outcome. But where appellate jurisdiction may be an open question, might more cautious district judges defer exercising jurisdiction until the issue of appealability is resolved?

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.

Not Every Procedural Error is Jurisdictional

I know that sounds self-evident. But a jurisdictional challenge is your last hope on appeal if you’re relying on procedural irregularities that you let pass without objection. That’s because a jurisdictional defect can be raised any time in the course of the proceedings, so a party on appeal does not have to worry about having waived it.

But the appellant in In re Angel S., case no. C054446 (3d Dist. Oct. 23, 2007, modified and ordered published Nov. 13, 2007) isn’t able to pull it off.

The appellant in Angel S. had her probate guardianship of her 2-year-old great niece terminated after the girl suffered severe head injuries in appellant’s care and appellant later failed to complete steps ordered in the reunification services plan. She claimed that the juvenile court that terminated the guardianship lacked jurisdiction to do so because the Sacramento County Department of Health and Human Services petitioned to end the guardianship under Welfare and Institutions Code section 388 instead of by a motion under section 728 and did not give notice of the hearing to the minor’s father or establish that good faith attempts to locate him had failed.

But neither of these errors is jurisdictional, says the court. Section 728 conferred fundamental jurisdiction on the juvenile court to terminate the guardianship. Bringing the petition under the wrong section is a mere procedural defect that the appellant waived by failing to object below. As for notice, appellant had no standing to challenge a lack of jurisdiction as to the father that might result from the failure to serve him. She was provided notice of the hearing and appeared.

This case has a nice, succinct discussion of the difference between a lack of fundamental jurisdiction to hear and decide a matter vs. acts “in excess of” a court’s power to act even when it has fundamental jurisdiction. Both are a form of jurisdictional defect, but the distinction is important because the ways in which a lack of jurisdiction may be challenged depend on the type of jurisdictional defect. This case is worth reading for this summary alone.

Jurisdiction Not Interesting?

Professor Martin at California Appellate Report lauds Judge Bybee for his opinion in SEC v. Ross, case no. 05-35541 (9th Cir.  Oct. 15, 2007):

It’s an erudite, comprehensive, and incredibly good opinion.  On a subject (here, jurisdiction and service of process) that’s nowhere near inherently exciting.

Nowhere near inherently exciting?  Huh?  Then again, my favorite first-year law school class was Civil Procedure, so I’ve been a bit odd from the beginning.

That said, I’m too busy at the moment to read this lengthy decision.  But I skimmed it, and here’s the first thing that jumped out at me:  Bustos, a pro se appellant, beats Allen Matkins and the SEC and convinces the Ninth that the district court lacked personal jurisdiction to order disgorgement of his sales commissions.  Not bad.

FRAP 4(a)(7)’s 150-day Period Sets Time of Entry of Judgment, not Time to Appeal

Sometimes, the rules seem rather tangled.  But go through them slowly, and they usually  all “come together.”

Such is the case in Menken v. Emm, case no. 05-164637 (9th Cir. Sept. 19, 2007), in which the appellees argued that the notice of appeal was not timely.  The district court granted a motion to dismiss for lack of personal jurisdiction but never entered a separate order.  The issue thus became when the 30-day deadline for filing the notice of appeal was triggered.

The analysis is rather straightforward.

The date of entry of a judgment triggers a 30-day deadline to appeal from it.  (Fed. R. App. P. (“FRAP”) 4(a)(1).)  For this purpose, the date of entry is defined by FRAP 4(a)(7), which sets forth two different standards depending on whether the judgment or order requires a separate document under the Federal Rules of Civil Procedure:

(A) A judgment or order is entered for purposes of this Rule 4(a):

(i) if Federal Rule of Civil Procedure 58(a)(1) does not require a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a); or

(ii) if Federal Rule of Civil Procedure 58(a)(1) requires a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a) and when the earlier of these events occurs: the judgment or order is set forth on a separate document, or 150 days have run from entry of the judgment or order in the civil docket under Federal Rule of Civil Procedure 79(a).

So, determining the deadline for the notice of appeal from any given judgment involves two steps once the judgment is identified: (1) determine when — according to the definition of “entry” in FRAP 4(a)(7) — the judgment was entered for purposes of FRAP 4(a); and (2) add thirty days.  Simple, right?

The appellees in Menkem didn’t think so.  The order appealed from in that case fell under FRAP 4(a)(7)(A)(ii) because it required a separate document, which was never filed.  The court makes quick work of the appellees’ argument that FRAP 4(a)(7) sets the deadline for filing the notice of appeal:

[Appellees argue] that if more than 150 days have passed from the entry of the order, the time to appeal that order has expired.  [Appellant] correctly asserts that under Federal Rule of Appellate Procedure 4(a)(7)’s plain language, judgment was entered after 150 days, which then started the Federal Rule of Appellate Procedure 4(a)(1)(A) 30-day appeals period. In other words, Menken had 180 (150 days plus 30 days) from entry of the order on January 27, 2005 in which to appeal.

[Appellant] filed his notice of appeal on July 22, which is 176 days from the entry of the January 27, Order.  [Appellant’s] notice of appeal is therefore timely.

It’s surprising appellees would want to get started on the wrong foot with this argument.  As the court notes, the result is evident from the plain language of the rule.

Turning to the merits of the appeal, the Ninth applies a straightforward personal jurisdiction analysis and reverses the district court’s order dismissing the case for lack of personal jurisdiction.  Professor Martin at California Appellate Report calls this a “wonderful” opinion for schooling students on personal jurisdiction.  He also evaluates Judge Bybee’s concurring opinion, which advocates an abbreviated test for personal jurisdiction.  He gives high praise to Judge Bybee for his willingness to buck doctrine and think outside the box but finds his argument unpersuasive.

Ninth Circuit Holds that the Political Question Doctrine is a Jurisdictional Limitation

The Ninth Circuit holds that the political question inherent in Corrie v. Caterpillar, Inc., case no 05-36210 (9th Cir. Sept. 17, 2007) precludes the exercise of Article III jurisdiction.  Until Corrie, the Ninth Circuit has not clearly decided whether the political question doctrine is a jurisdictional limitation or merely a self-imposed prudential restraint.

The court evaluates competing cases on the issue, and even finds that the six factors used in evaluating whether the case concerns a political question, enumerated in  Baker v. Carr, 369 U.S. 186 (1962), are themselves divided into jurisdictional and prudential considerations.  It reconciles this dichotomy by deciding that the doctrine’s prudential concerns can help define the scope of subject matter jurisdiction under Article III of the Constitution:

Prudential considerations look to the consequences of a court asserting its jurisdiction, while purely constitutional ones look to the text and structure of the Constitution itself for clues about the limitations on a court’s Article III powers. Because the Constitution’s grants of authority are often set forth in broad strokes, courts often take prudential concerns into account to assist them in the difficult task of discerning which cases the Constitution forbids them from hearing.  [Citation.]  We have accordingly pointed to Justice Powell’s view that the first three Baker factors focus on the constitutional limitations of a court’s jurisdiction, while the final three are “prudential considerations [that] counsel against judicial intervention.” [Citations.]

In this sense, the political question doctrine may have a prudential element to its application, and it is not a contradiction to speak of the political question doctrine as both prudential and jurisdictional.  But it is at bottom a jurisdictional limitation imposed on the courts by the Constitution, and not by the judiciary itself. [Citation.]

We hold that if a case presents a political question, we lack subject matter jurisdiction to decide that question.

By now, you’re probably wondering just what political question was presented.  Plaintiffs were family members of persons killed by Israeli Defense Forces bulldozers supplied by Caterpillar and paid for by the U.S. Government.  For analysis of how the court decided the existence of a political question, see Decision of the Day.

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 Stanley-Wallace Law, 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.

Challenging Voidable Judgments

A short lesson in the difference between void judgments and valid but voidable ones is provided in Baron v. Fire Insurance Exchange, case no. H029830 (6th Dist. Sept. 4, 2007).  While I think the court’s decision not to avoid the “valid but voidable” order in this case is the correct one, I am a bit surprised by its rationale.

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 . . . 

Read More »

Jurisdiction over Church Property Issues

When does a Southern Baptist church cease to be a Southern Baptist church?  I know that sounds like a set-up, but there’s no punchline here.  It’s a serious question, and it was at the heart of a dispute decided by the a Monterey County Superior Court.

In Central Coast Baptist Assn. v. First Baptist Church of Los Lomas, case no. H029958 (6th Dist. August 23, 2007), a reversionary clause in First Baptist’s constitution provided that its assets would pass to Central Coast, a voluntary association of Baptist churches, in the event of a “dissolution or winding up” of First Baptist or if it should “cease to be a Southern Baptist Church.”  Central Coast brought suit to enforce the reversionary clause, contending it was triggered by the attempted takeover of First Baptist by New Life Community Church and its Pastor.  After a bench trial ordered enforcement of the reversionary clause based on its findings that FIrst Baptist had “ceased to function as a Southern Baptist Church” and had “de facto dissolved.”

The court finds that the trial court lacked jurisdiction to inquire into the first condition for triggering the clause — whether First Baptist had ceased to be a Southern Baptist Church — because the question required resolution of disputes over church doctrine.  Such an inquiry violates the First Amendment.

However, the First Amendment does not bar inquiry into the existence of the second condition — dissolution or winding up — because the issue can be resolved by application of neutral legal principles to the governing church bylaws and constitution.  The court finds plenty of evidence — not the least of which were resolutions, properly adopted according to the procedures in the bylaws, to dissolve the church and turn the assets over to Central Coast — to support the trial court’s finding that First Baptist had “de facto dissolved.”

Confusing Jurisdiction with Forum Selection

It’s common to see forum selection clauses in contracts.  It’s also common to see such clauses purport to limit “jurisdiction” to the courts of a given state or even a specific county within the state.

Nice try.  No matter the skill of the lawyers, parties simply cannot strip a court of subject matter jurisdiction by private agreement, as we are reminded by the Third District Court of Appeal in Miller-Leigh, LLC v. Henson, case no. C051652 (June 28, 2007).  The parties to a lease guaranty for leased property in Arizona included a provision stating that the guaranty was governed by Arizona law and that “Arizona is the proper jurisdiction for any matters relating to” the lease or guaranty.  The lease provisions was more restrictive, stating that “any court action relating to this Lease shall be instituted and prosecuted only in a court of competent jurisdiction in Maricopa County, Arizona, and each party waives his rights, if any, to institute or prosecute suit in any forum other than Maricopa County, Arizona.”  The California trial court sustained defendants’ demurrer brought on the ground that it lacked subject matter jurisdiction over the claims for breach of guaranty, fraud, account stated and open book account, but denied their motion for attorney fees because it held it likewise lacked jurisdiction to decide the fee motion.

The Court of Appeal reverses.  While the trial court could have chosen to enforce the forum selection clause, it erred in dismissing for lack of jurisdiction.  The trial court’s subject matter jurisdiction over these claims cannot be limited by the agreement of the parties.  The concepts of subject matter jurisdiction and forum selection are distinct, and the forum selection clause cannot be enforced by a demurrer asserting lack of subject matter jurisdiction.

This is not to say, of course, that the forum selection clause is unenforceable.  Two statutory procedures exist for challenging the forum.  Code Civil Procedure section 418.10, subdivision (a)(2) authorizes a motion to dismiss on the ground of inconvenient forum, and Code of Civil Procedure section section 410.30, subdivision (a) provides that a court may dismiss an action “in whole or in part on any conditions that may be just” where “in the interest of substantial justice an action should be heard in a forum outside this state.”

A Trip Down a “Dark Corridor”

In Linear Technology Corp v. Applied Materials, Inc., case no. H028343 (June 18, 2007), the Sixth District Court of Appeal offers a primer on determining whether a case is one “arising under any Act of Congress relating to patents” within the meaning of that language in Title 28 United States Code section 1338(a).

Linear purchased equipment from the three defendants and was sued for patent infringement by a third party, with whom it settled.  Linear alleged its use of the equipment led to the patent infringement suit and sought indemnity from the sellers by suing them in state court on multiple causes of action.  The superior court dismissed the case in its entirety, finding that the complaint failed to state a claim as to two of the causes of action and that it lacked jurisiction over the remainder because section 1338(a) conferred exclusive jurisdiction over them to the federal district court.

The claims dismissed for lack of jurisdiction were for breach of contract, breach of the implied covenant of good faith and fair dealing, implied equitable indemnity, and breach of statutory warranty.  The Sixth District finds that the claims do not “arise under” the patent laws, and therefore reverses as to those claims (though it affirms the dismissal of fraud and unfair competition claims on non-jurisdictional grounds).  The decision makes for a good read in part because Linear wins the jurisdictional argument despite the court’s disagreement with it over the nature of the third party action.

The single best line of the opinion is this quotation from Arthur Young & Co. v. City of Richmond (4th Cir. 1990) 895 F.2d 967, 969 fn.2, which the court uses to set the stage for its jurisdictional analysis:

The line between cases that “arise under” [the patent laws] and those that present only state law contract issues is “a very subtle one,” [citation] and the question leads down “one of the darkest corridors of the law of federal courts and federal jurisdiction.” [Citation.]

Makes it sound creepy, doesn’t it?

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

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

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

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

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

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Claim Challenging Removal of Cross from County Seal Fails in Ninth Circuit

In 2004, under legal threat from the American Civil Liberties Union, Los Angeles County removed from its official seal an image of a cross (which shared the seal with the Roman goddess Pamona, engineering instruments, a Spanish galleon, a tuna, a cow, oil derricks, the Hollywood Bowl, and two stars representing the area’s motion picture and television industries).  It replaced the cross with a depiction of the first Spanish mission established in the county (which depiction did not include a cross), and made other changes to the seal.  Plaintiff Ernesto R. Vasquez, an employee of the County of Los Angeles, filed suit in federal court under 42 U.S.C. § 1983, claiming that the removal of the cross from the seal violated the Establishment Clause of the First Amendment to the United States Constitution because it conveyed, in the words of the Ninth Circuit, a “state-sponsored message of hostility toward Christians.”  The County moved to dismiss, and the district court dismissed the case with prejudice.

The Ninth Circuit affirms in Vasquez v. Los Angeles County, case no. 04-56973 (May 15, 2007). (The “before” and “after” seals are appendices to the opinion but are provided in a separate PDF file here.)  The court finds that Vasquez has standing because he is a county employee that has frequent regular contact with the offending county seal.  It also ruled that the claim was not mooted by the inclusion of the Spanish mission as a substitute for the cross, finding that the district court’s conclusion to the contrary, based on its rationale that substitution of one Christian symbol for another could not be considered hostile to Christianity, confused mootness with the merits of the case.

That’s where plaintiff’s luck runs out.  The court turned next to the oft-vilified Lemon test (Lemon v.Kurtzman, 403 U.S. 602 (1971)), under which a government action is consistent with the Establishment Clause if it: (1) has a secular purpose; (2) has a principal or primary effect
that neither advances nor disapproves of religion; and (3) does not foster excessive governmental entanglement with religion.  Reaching beyond the pleadings, the court concludes that the cross was removed from the seal for the secular purpose of avoiding threatened litigation over an alleged Establishment Clause violation and that the purpose of the removal was to restore neutrality.  Finally, it rejects plaintiff’s contention that the political divisiveness arising from the controversy was sufficient to plead excessive entanglement.

Perhaps I have greater interest in this case because I live in a neighboring county and closely followed the original controversy over the cross and seal as it developed, but I am surprised to find only one other blog post about it.  That post is here at the “Decision of the Day.”  (It’s also possible that bloggers will pay more attention to this case in the coming days but were too busy posting about the Fair Housing Council v., LLC case, which also came out yesterday and, as I posted earlier today, took the legal blogosphere by storm.)

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