Comedy Club Finds Out there’s Nothing Funny about Appellate Jurisdiction

Even when an appeal arises from a trademark dispute between two parties in the comedy trade, appellate jurisdiction is serious business, as the appellant learns in Comedy Club, Inc. v. Improv West Associates, case no. 05-55739 (9th Cir. Sep. 7, 2007, amended Jan. 23, 2008).

In this trademark license dispute in which the district court dismissed all claims in its order compelling arbitration, the appellant had 180 days to file its notice of appeal because the district court did not enter judgment on this appealable order.  (Fed. R. App. P. 4(a)(7)(A)(ii).)  But the appellant waited 287 days, until the arbitration was concluded and the arbitration award was confirmed, to do so.

The appellant was probably under the mistaken belief that no appeal was allowed from the order compelling arbitration and that the order could only be challenged on appeal from an order confirming the arbitration award.  But the district court’s simultaneous dismissal of all claims made the arbitration order final for purposes of appeal.

Appellant nonetheless gets some relief in this case, as it partially succeeds on its appeal from the order confirming the arbitration award.

Are Stipulated Judgments Appealable?

Well . . . yes and no. Or better yet, mostly no, and occasionally yes. And to discover the difference between those that are and those that aren’t, an excellent starting point is yesterday’s decision in Harrington-Wisely v. State of California, case no. B190431 (2d Dist. Nov. 20, 2007).

Plaintiffs in this case alleged 10 causes of action for damages and one for injunctive relief, alleging that their constitutional rights were violated by overly intrusive x-ray technology (more about that later) used by the California Department of Corrections to search visitors at certain state penitentiaries. The CDC successfully moved for summary adjudication on the class damages claims on the ground that damages were unavailable, leaving only the injunctive relief claim. The court then issued a sua sponte reconsideration order specifying that the summary adjudication order only barred plaintiffs’ class claims to the extent they sought damages. Thus, all claims remained active to the extent they sought injunctive or declaratory relief.

The parties then entered into a stipulated judgment that entered judgment on the claims insofar as they sought damages but, rather than dismiss, enter an injunction, or otherwise finally dispose of the equitable claims, merely referred to the parties’ agreement concerning them. Among other things, the CDC agreed to curtail use of the machines and not to reinstitute use without giving notice that would provide plaintiffs an opportunity to move for a preliminary injunction first.

The stipulated judgment set forth 16 issues for potential adjudication and provided that the court retained jurisdiction “to enforce the terms of the agreement.” It also stated that it was “only appealable as stipulated.”

Plaintiffs appealed on the basis that summary adjudication on the damages claims was improperly granted. The appeal was clearly contemplated by both sides when they entered into the stipulation.

Nonetheless, the court dismisses the appeal for lack of jurisdiction because the stipulated judgment is not an appealable final judgment. A judgment is “the final determination of the rights of the parties in an action or proceeding.” (Code Civ. Proc. § 577.) The failure of the stipulated judgment to determine the parties’ rights on the equitable claims, either by an injunction to perform as agreed, by dismissal, or otherwise, prevents it from being an appealable judgment for purposes of Code of Civil Procedure section 904.1, subdivision (a)(1). Regardless of the parties’ intent in drafting the stipulated judgment in this way, and regardless of their obvious intent to allow appeal on the damages claims, the court lacks jurisdiction as a result of this missing element.

The court goes on to address and reject several arguments raised by plaintiffs.

First, the appeal cannot be “saved” by liberally construing of the notice of appeal. To do so, there must be another appealable order or judgment from which the appeal can be deemed to have been taken. Here, there is no such appealable order or judgment.

Second, plaintiffs could not invoke the exception to the general rule against appealability of stipulated judgments. Recognizing that most stipulated judgments are not appealable, the court concludes that this one does not fall within the exception for judgments entered into to facilitate appeal after an adverse determination of a critical issue. While the summary adjudication on the class damages claims was indeed critical, the failure of the stipulated judgment to dispose of all claims prevents the exception from applying. In other words, even the exception applies only to stipulated judgments that are final. Had plaintiffs, for example, dismissed their equitable claims as part of the stipulated judgment, thereby disposing of all claims, they could have invoked this exception.

Finally, plaintiffs unsuccessfully argued that the 16 issues for potential adjudication anticipated nothing more than proceedings to enforce the stipulation. The court finds these were complex questions of constitutional and statutory law that related to litigation of the equitable claims, not enforcement.

Now, about that technology. The x-ray machines were so sophisticated that they produced “a spectral-like computer image of the body, including an outline of breasts, genitalia and folds of skin.”

This juicy fact led to some great, funny posts. The post at Legal Pad includes a photograph that demonstrates the imaging capability of the x-ray machine (quite amazing) and made me chuckle. The post at California Appellate Report had me laughing out loud.

And I write about appellate jurisdiction. I am such a geek.

UPDATE (11/23/07):   My Dad was looking at this post (thanks for the traffic, Dad!) and told me that the links in the post at California Appellate Report are a bit . . . racy.  You might want to avoid them.  What I found so funny about the post was in the post itself.  Wrote Professor Martin: “I mean, sure, if I enter a prison, and am carrying a package, you can x-ray my package. But x-raying — and looking at the shape and size — of my package?! Crikey!”